11 S.W. 310 (Mo. 1889), Tetherow v. St. Joseph & Des Moines Railroad Co.

Citation:11 S.W. 310, 98 Mo. 74
Opinion Judge:Barclay, J.
Party Name:Tetherow v. The St. Joseph & Des Moines Railroad Company, Appellant
Attorney:Strong & Mosman for appellant. Green & Burnes, James W. Boyd and J. L. Sutherland for respondent.
Judge Panel:Barclay, J. Sherwood, J., absent.
Case Date:March 23, 1889
Court:Supreme Court of Missouri
 
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Page 310

11 S.W. 310 (Mo. 1889)

98 Mo. 74

Tetherow

v.

The St. Joseph & Des Moines Railroad Company, Appellant

Supreme Court of Missouri

March 23, 1889

Page 311

Appeal from Buchanan Circuit Court. -- Hon. J. P. Grubb, Judge.

Plaintiff is the widow of Levi Tetherow deceased. She sues to recover damages under the statute, for the death of her husband, charging that it was caused by defendant's negligence in failing to provide a good and sufficient crossing over its tracks on Fourteenth street in St. Joseph, Missouri. It is alleged that in consequence of this negligence Tetherow was thrown from his wagon while passing over the railroad crossing on a load of wood and received injuries from which he died.

The answer denied these allegations and asserted that Tetherow's injuries resulted from his own care-lessness.

Plaintiff replied, denying the contributory negligence.

The case was tried with the aid of a jury. There was evidence tending to show that defendant had three tracks crossing said street at right angles to it. Deceased approached the tracks from the south upon Fourteenth street. He was driving a pair of mules and seated on top of a load of wood. The wood had been piled lengthwise in an ordinary wagon-bed or box, until the latter was full, then other pieces were placed crosswise upon the top. The wood was thus raised some two or three feet above the top of the wagon-box. There was a stream between the first and second tracks, spanned by a bridge. The defect alleged and place of injury were at the third track, the last one reached by Tetherow in the direction he was going. This third track was neither planked nor level with the roadway, over a portion or all of the width of Fourteenth street. As to the extent of that condition the evidence conflicts. Near by was a depot of defendant's. A good plank crossing over this third track began there and extended toward Fourteenth street. According to defendant's evidence it reached a point about the center of Fourteenth street. According to plaintiff's evidence it reached a point near the beginning of that street, leaving the track, across the whole width of the street, in the negligent condition described.

There was evidence tending to show that deceased drove over the bridge, but in passing the third track his load was jostled out of place, some of his wood rolled down and hit the mules, he was thrown off, run over and killed.

On defendant's part there was evidence tending to show that before he reached these tracks the wood had shifted and begun to fall, and considerable evidence generally tended to show that the injury arose from other causes than the condition of the tracks.

In the progress of the trial plaintiff was allowed to testify to the number and ages of her minor-children.

A witness for plaintiff was asked (on re-direct examination) whether the railroad company had since repaired the place of the accident, and in reply said: "Yes, it has been graded off since."

Among the instructions given for plaintiff were these:

"1. The court instructs the jury that if they believe from the evidence that the defendant, before and on the twelfth day of September, 1884, owned two railroad tracks running across Fourteenth street, in the city of St. Joseph, and that said Fourteenth street was then and there a public street, and used by the public as such, then it was the duty of the defendant to provide and maintain good and sufficient crossings on said street, where said tracks ran across the same, that is, such crossings as enable travelers with wheeled vehicles to pass over said tracks with reasonable safety. And if the jury believe from the evidence that the defendant had at said time, carelessly and negligently permitted the rails of its said track to be and remain several inches above the road-bed and traveled way of said street, and several inches above the ground and road-bed between the rails of said track, and had carelessly and negligently permitted holes and depressions to exist in said street at said crossings, thereby rendering said crossing unsafe, dangerous and unfit for travel, and that on September 12, 1884, said Levi Tetherow was driving his wagon and team along said street, at said crossing, and that said wood was then and there in a reasonably proper and safe condition on said wagon, and that by reason of said condition of said crossing his wagon was jarred and jostled, and by said jarring and jostling he was, while using ordinary care, thrown from his wagon and killed, and that plaintiff was, at the time of his death, his wife, then the jury will find for plaintiff."

"3. The jury are instructed that if you find for the plaintiff, you may, in your verdict, give her such damages, not exceeding five thousand dollars, as you may deem fair and just under the evidence in the case, with reference to the necessary injury resulting to her from the death of her husband."

"7. Negligence is the failure...

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