10 S.W. 852 (Mo. 1889), Sullivan v. Missouri Pacific Railway Co.

Citation:10 S.W. 852, 97 Mo. 113
Opinion Judge:Black, J.
Party Name:Sullivan v. Missouri Pacific Railway Company, Appellant
Attorney:Adams & Bowles for appellant. Warner & Dean and E. A. Andrews for respondent.
Judge Panel:Black, J. Barclay, J., not sitting.
Case Date:February 18, 1889
Court:Supreme Court of Missouri

Page 852

10 S.W. 852 (Mo. 1889)

97 Mo. 113

Sullivan

v.

Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

February 18, 1889

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Adams & Bowles for appellant.

(1) The defendant's objection to the introduction of any evidence, under the petition, should have been sustained. The allegation is, that the death of plaintiff's husband was occasioned "by the negligence of the officers, servants or employes of the defendant whilst running, conducting or managing said locomotive or train of cars." The only particular acts of negligence charged are, "that said train was out of time, and under the control and management of one Fitzgerald as conductor, and O'Donnell, as engineer." There is no suggestion as to why these circumstances were negligence, either in law or fact. Gurley v. Railroad, 93 Mo. 445; Stephens v. Railroad, 86 Mo. 226-227; Railroad v. Jones, 76 Ill. 311. (2) The defendant's instructions in the nature of demurrers to the evidence at the close of plaintiff's case, and of the entire case, should have been given. McDermott v. Railroad, 30 Mo. 115; Rohback v. Railroad, 43 Mo. 187; Harlan v. Railroad, 65 Mo. 22; Kelly v. Railroad, 75 Mo. 138; Yarnell v. Railroad, 75 Mo. 575; Stephens v. Railroad, 86 Mo. 221; Randall v. Railroad, 109 U.S. 478; Railroad v. Wachter, 60 Md. 395; Besel v. Railroad, 70 N.Y. 171; Valtez v. Railroad, 85 Ill. 500. (3) The train that struck Sullivan was in plain view, and his failure to be vigilant and watchful for approaching trains was negligence, which directly contributed to his death, and plaintiff cannot recover. Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Cagney v. Railroad, 69 Mo. 424; Moody v. Railroad, 68 Mo. 470; Heinze v. Railroad, 71 Mo. 636; Zimmerman v. Railroad, 71 Mo. 476; Lennox v. Railroad, 76 Mo. 86; O'Donnell v. Railroad, 7 Mo.App. 535; Kelly v. Transit Co., 11 Mo.App. 1; Railroad v. Houston, 95 U.S. 697; Parker v. Railroad, 86 N.C. 221. (4) The engineer, conductor, and Sullivan were all fellow-servants of defendant corporation, and it is not liable to the plaintiff for negligence of the engineer or conductor, if any there was, in running and managing the train. McGowen v. Railroad, 61 Mo. 532; Blessing v. Railroad, 77 Mo. 312; Collins v. Railroad, 30 Minn. 31; Cormley v. Railroad, 72 Ind. 31; Baldt v. Railroad, 18 N.Y. 432; Railroad v. Devinney, 17 Ohio St. 197; Slatterly v. Railroad, 23 Ind. 81; Foster v. Railroad, 14 Minn. 360; Valtez v. Railroad, 85 Ill. 500; Farwell v. Railroad, 4 Met. 49; Holden v. Railroad, 129 Mass. 268; Handerville v. Railroad, 11 Ohio St. 417; Hays v. Railroad, 3 Cush. 270; Railroad v. Dolan, 32 Mich. 510; Whalen v. Railroad, 8 Ohio St. 249. (5) And the failure of plaintiff to show that they were not fellow-servants is fatal to her recovery. Blessing v. Railroad, supra. (6) This being an action by the legal representative of an employe of defendant, the court erred in instructing the jury that if they found for plaintiff to assess her damages at five thousand dollars. Flynn v. Railroad, 78 Mo. 190; Holmes v. Railroad, 69 Mo. 536; Elliott v. Railroad, 67 Mo. 272; Proctor v. Railroad, 64 Mo. 112. (7) It was an error to permit the plaintiff to read the deposition of the witnesses who resided in the county of Jackson, where the trial was had, without proof that they were not within the jurisdiction of the court. Gurman v. Mockbee, 29 Mo. 345; Livermore v. Eddy, 33 Mo. 547; Witherell v. Patterson, 31 Mo. 454; Gaul v. Minger, 19 Mo. 541.

Warner & Dean and E. A. Andrews for respondent.

(1) The petition is statutory -- in the exact language of the statute -- good against general demurrer, and therefore the general objection (if objection it was) was properly overruled. The petition states a cause of action. Edens v. Railroad, 72 Mo. 213; Schneider v. Railroad, 75 Mo. 295; Mack v. Railroad, 77 Mo. 232. (2) Upon the evidence, the inferences to be drawn therefrom, and the surrounding attendant circumstances, the case is one that should be submitted to a jury. (3) Whatever other courts may have decided, this court has long since determined that these train-men and Sullivan were not fellow-servants. Hall v. Railroad, 74 Mo. 298. and cas. cit. (4) The reading of depositions was properly allowed -- they were taken by consent, and read by consent, without proper objections at the time of taking or at the trial. This was a matter entirely in the discretion of the court below, unless the record shows an improper exercise of that discretion, which it does not in that case. Defendant had its day in court by appearing and cross-examining, a very different case from one non-invitum. Shepard v. Railroad, 85 Mo. 629.

Black, J. Barclay, J., not sitting.

OPINION

[97 Mo. 116] Black, J.

The plaintiff is the widow of Patrick Sullivan; he was killed by a passenger train on defendant's road and she sued for and recovered five thousand dollars damages, basing her cause of action on section 2121, Revised Statutes, 1879, known as the second section of the damage act. The petition states that deceased was a track-hand, his duties being that of a track-walker over a section of the road, and it then proceeds to state: [97 Mo. 117] "That while so engaged on the eighth day of

Page 853

May, 1885, he was run upon, injured and killed by the locomotive and cars of defendant, known as the morning Lexington train, west, and resulting from or occasioned by the negligence of the officers, servants or employes of defendant, whilst running, conducting or managing said locomotive and train of cars; that the said train was out of time and under the control and management of one Fitzgerald, as conductor, and one O'Donnell, as engineer; all, at or near Rock creek, in said county and state aforesaid; on the line of defendant's railway."

1. The...

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