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
 
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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...

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