Marriott v. Missouri Pacific Railway Co.
| Citation | 126 S.W. 231,142 Mo.App. 199 |
| Parties | ANN MARRIOTT, Respondent, v. MISSOURI PACIFIC RAILWAY CO., Appellant |
| Decision Date | 07 February 1910 |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
AFFIRMED CONDITIONALLY.
Ben J Woodson and Martin L. Clardy for appellant.
Brewster Ferrell & Mayer for respondent.
This is an action for personal injury received by plaintiff in a collision between one of defendant's trains on which she was a passenger, in company with her husband, and a freight train belonging to the Chicago, Burlington & Quincy Railroad Company. She recovered judgment in the trial court. The Chicago, Burlington & Quincy Railroad was made a joint defendant, but at the close of the evidence a demurrer in its behalf was sustained. Plaintiff's husband was also injured and afterwards died, it is claimed from the effect of the injury, and plaintiff, as his widow, recovered judgment for his death in the sum of seven thousand dollars.
The collision occurred at a crossing of tracks in the city of St Joseph. The position of the various tracks and streets at and near the scene have been particularly and clearly pointed out to us by counsel. It seems that the defendant had backed its train a short distance west onto terminal tracks for the purpose of leaving a sleeping car and that to do this it was necessary to cross the track of the Chicago, Burlington & Quincy. After detaching the sleeper defendant's train then moved forward, east, again crossing the other company's track and in doing so, the latter's freight train ran into defendant's rear coach, in which plaintiff and her husband were seated. It appears that a flagman is kept at the crossing and that he is the agent of both railway companies for the purpose of flagging trains. That it is the duty of each engineer to await a signal from this flagman before moving over the crossing. The engineer of the defendant's train, claiming that he received a signal to cross and not observing the other train, it being then out of view on account of buildings, attempted to move over. He got over with the engine, when the brakeman gave him a "violent" signal and the fireman, seeing the other train, called to him. He then pulled the "throttle wide open" in order to clear the crossing before the other got to it, but the rear car did not get over in time and the result was the collision, which wrecked the passenger coach and injured plaintiff and her husband. But there was other evidence in the case which tended to show the engineer of defendant's train to have been guilty of negligence. There was evidence that no signal was given to him to make the crossing and that it was his duty to await such signal. The flagman was the agent of both railway companies and if he, standing at the crossing, did not signal defendant's engineer, the latter was manifestly guilty of negligence. And since the attempt to cross without a signal was an immediate cause of the collision, it was the proximate cause of the injury.
We therefore conclude, with the trial court, that the demurrer to the evidence was not well taken.
It is next insisted that there was substantial error in instructions given for plaintiff. This complaint is based on the assumption that the petition charges specific negligence as the cause of the injury, and that the instructions were of such breadth as to permit the jury to go outside such specifications in making up a verdict. Plaintiff contends that the charge she makes in her petition is general negligence and hence the criticism on the instructions is not well made; but that, however it may be interpreted, the instructions were in fact no broader than the charge, and therefore the criticism again is without support.
The petition alleges that defendant "carelessly and negligently operated and ran its train in which plaintiff was riding as a passenger" so that the collision occurred. This charge is more specific than...
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