Tetherow v. St. Joseph & Des Moines Railroad Co.
Citation | 11 S.W. 310,98 Mo. 74 |
Parties | Tetherow v. The St. Joseph & Des Moines Railroad Company, Appellant |
Decision Date | 23 March 1889 |
Court | United States State Supreme Court of Missouri |
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:
The court, at the request of the defendant, gave to the jury, among others, the following instructions, viz:
The court refused the following instruction, tendered by defendant:
The jury returned a verdict for plaintiff for twenty-nine hundred dollars, together with the following special findings, viz:
The court refused to submit to the jury for findings, the following questions offered by defendant:
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