11 Mo.App. 1 (Mo.App. 1881), Kelly v. Union Ry. & Transit Co.

Citation:11 Mo.App. 1
Opinion Judge:THOMPSON, J.
Party Name:JAMES KELLY, Respondent, v. UNION RAILWAY AND TRANSIT COMPANY, Appellant.
Attorney:S. M. BRECKINRIDGE, with whom is M. F. WATTS, for the appellant, A. R. TAYLOR, for the respondent,
Case Date:July 05, 1881
Court:Court of Appeals of Missouri
 
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Page 1

11 Mo.App. 1 (Mo.App. 1881)

JAMES KELLY, Respondent,

v.

UNION RAILWAY AND TRANSIT COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

July 5, 1881

Where a person, engaged in making repairs on a railway track knew that a train was approaching but a short distance away, but nevertheless turned his back to it, stooped down and continued his work, and while in this position, was struck by the train and injured, it was held that he was guilty of such contributory negligence as would prevent a recovery, though the defendant was handling the car which caused the injury in a negligent manner and in violation of a city ordinance.

Appeal from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

S. M. BRECKINRIDGE, with whom is M. F. WATTS, for the appellant, cited: Hallihan v. Railroad Co., 71 Mo. 113; Rains v. Railroad Co., 71 Mo. 164; Zimmerman v. Railroad Co., 71 Mo. 476; Henze v. Railroad Co., 71 Mo. 636; O'Donnell v. Railroad Co., 7 Mo.App. 19; Nolan v. Shickle, 3 Mo.App. 300; s. c. 69 Mo. 336.

A. R. TAYLOR, for the respondent, cited: Goodfellow v. Railroad Co., 106 Mass. 461; Railroad Co. v. The State, 33 Md. 554; Schultz v. Railroad Co., 44 Wis. 638; Mauerman v. Sumedt, 71 Mo. 101; Kelly v. Railroad Co., 70 Mo. 604; Crow v. Beardley, 68 Mo. 440.

OPINION

THOMPSON, J.

Page 2

The plaintiff was run over by a train of cars of the defendant, and received an injury which rendered necessary the amputation of his foot; and he has brought this action against the defendant for damages, and has recovered a judgment for $2,000, from which the defendant appeals.

The plaintiff was a servant of the Missouri Pacific Railway Company. He was sent, on January 18, 1879, to put down a rail on the track of the Missouri Pacific railway, in order to connect one of the tracks of this company with a track of the defendant company, at a point near Tenth Street in the city of St. La. There were from ten to twenty railway tracks in the immediate vicinity, and trains were constantly passing and repassing upon them. It was a bright day, but the smoke from the passing engines necessarily darkened the air more or less. The plaintiff commenced the work of fastening the two rails together by means of a fish-bar or iron-strap, which is clamped against the side of the rails by four bolts fastened with nuts. In order to perform this...

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