Schlereth v. Missouri Pacific Railway Co.

• Citation: 10 S.W. 66,96 Mo. 509
• Parties: Schlereth v. The Missouri Pacific Railway Company, Appellant
• Decision Date: 20 December 1888
• Court: United States State Supreme Court of Missouri

10 S.W. 66

96 Mo. 509

Schlereth v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

The following are the instructions discussed in the opinion:

"The jury are instructed that if they believe from the evidence that on or about the twenty-sixth day of November, 1884, the plaintiff one Anton Schlereth were husband and wife and that said Anton died on or about the day aforesaid and left the plaintiff surviving him as his widow, and that on or about said day, the defendant, by its officers, agents, servants employes, was running, conducting or managing one of its locomotives, and that said locomotive was then running on along and over defendant's line of railway within the limits of the city of St. Louis, and that said locomotive was then run against or upon the body of said Anton, and that said Anton was then struck with said locomotive and injured, and that said Anton died of such injury on or about said day, and that such striking of said Anton and injury to him, resulted from, or was occasioned by the negligence of any of said officers, agents, servants or employes of defendant whilst running, conducting or managing said locomotive at or prior to the time said locomotive was run against, or upon the body of said Anton, they will find for the plaintiff.

"The jury are further instructed that if they find for the plaintiff they will assess her damages at the sum of five thousand dollars."

Reversed and remanded.

Bennett Pike for appellant.

(1) The testimony did not make a prima-facie case, and the demurrer to the evidence should have been sustained. McGowan v. Railroad, 61 Mo. 528; Marshall v. Schricke, 63 Mo. 309; Travers v. Railroad, 63 Mo. 424; Zimmerman v. Railroad, 71 Mo. 484; Lenix v. Railroad, 76 Mo. 86, 91; Railroad v. Hall, 72 Ill. 222. (2) The court committed error in giving the instructions asked by plaintiff. Lester v. Railroad, 60 Mo. 265; Turner v. Railroad, 51 Mo. 501; Flynn v. Railroad, 78 Mo. 195; Holmes v. Railroad, 69 Mo. 585. (3) The court erred in refusing to give the instructions asked by defendant. See cases cited under first head.

E. P. Johnson for respondent.

(1) The failure to ring the bell continuously at any place within the limits of the city, whether on a street or not, while running, and running at a rate of speed exceeding six miles per hour, in violation of the city ordinances, was negligence per se in the appellant. Keim v. Railroad, 90 Mo. 321; Bergman v. Railroad, 88 Mo. 678; Merz v. Railroad, 88 Mo. 677; Maher v. Railroad, 64 Mo. 275; Karle v. Railroad, 55 Mo. 483. (2) Deceased had a right to presume that the ordinance, in regard to speed and ringing the bell, would have been complied with by appellant, and the jury might have well have inferred that these omissions caused the injury. Petty v. Railroad, 88 Mo. 319; Johnson v. Railroad, 77 Mo. 551; Keim v. Railroad, 90 Mo. 321, 323; Donahue v. Railroad, 91 Mo. 357. (3) The presumption of law in this case is, there being no evidence on that point, that deceased was not guilty of negligence at the time of the injury, and the jury were fully justified in finding that the negligence of the appellant, in running at a rate of speed prohibited by, and failing to ring the bell in violation of, the city ordinances, caused the injury. Petty v. Railroad, 88 Mo. 320; Schum v. Railroad, 107 Pa. St. 8; Flynn v. Railroad, 78 Mo. 212; Swigert v. Railroad, 75 Mo. 480; Buesching v. Gas Co., 73 Mo. 233. (4) There was no error in refusing the instructions asked by appellant.

Sherwood, J. Ray, J., absent.

OPINION

Sherwood, J.

Action for damages, brought by plaintiff against defendant for causing the death of her husband, Anton Schlereth, who was killed by one of defendant's trains near Tower Grove station, in the city of St. Louis, while he was in defendant's employ as track-repairer.

Omitting formal parts, the petition is as follows: "That on said day the defendant, by its officers, agents, servants and employes, was running, conducting and managing one of its said locomotives, which was then and there being propelled by steam power on, along and over its said line of railway, within the limits of the city of St. Louis, and ran the said locomotive against and upon the body of said Anton, whereby said Anton was violently struck with said locomotive and thrown down and injured, of which injury the said Anton died on said day; that said injury to said Anton resulted from, and was occasioned by, the negligence and unskillfulness and criminal intent of said officers, agents, servants and employes of defendant whilst running, conducting and managing said locomotive, at and prior to the time it was run against and upon the body of said Anton; that by sections twenty-five and twenty-six of article four of chapter thirty-one of the revised ordinances of the city of St. Louis, approved March 29, 1881, entitled 'Public Carriers,' it is, among other provisions, provided as follows:

"'Sec. 25. It shall not be lawful within the limits of the city of St. Louis for any car, cars or locomotive propelled by steam power to run at a rate of speed exceeding six miles per hour.

"'Sec. 26. It shall not be lawful within the limits of the city of St. Louis for any car, cars or locomotive propelled by steam power to obstruct any street crossing by standing thereon longer than five minutes, and when running the bell of the engine shall be constantly sounded within said limits.'

"That, contrary to the provisions aforesaid of said ordinances of the city of St. Louis, said locomotive was, at and prior to the time it was run against and upon the body of said Anton, running at a rate of speed exceeding six miles per hour, and the bell of the engine of said locomotive was not constantly sounded while running within the limits of said city of St. Louis, at and prior to the time it was run against and upon the body of said Anton; that, at and prior to the time said locomotive was run against and upon the body of said Anton, the said locomotive was running at an irregular and unusual hour, at an immoderate and dangerous rate of speed, at a point in the city of St. Louis where great care and caution in running the same were required, and no warning or signal of its approach was given.

"That by reason of the aforesaid negligence and unskillfulness, and criminal intent, of said officers, agents, servants and...