13 S.W. 893 (Mo. 1890), Wilkins v. St. Louis, Iron Mountain and Southern Railway Co.

Citation:13 S.W. 893, 101 Mo. 93
Opinion Judge:Barclay, J.
Party Name:Wilkins v. The St. Louis, Iron Mountain and Southern Railway Company, Appellant
Attorney:Bennett Pike for appellant. Taylor & Pollard for respondent.
Case Date:June 02, 1890
Court:Supreme Court of Missouri
 
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Page 893

13 S.W. 893 (Mo. 1890)

101 Mo. 93

Wilkins

v.

The St. Louis, Iron Mountain and Southern Railway Company, Appellant

Supreme Court of Missouri

June 2, 1890

Page 894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

This action is to recover damages under the statute for the death of plaintiff's husband, who was killed in St. Louis at the Lesperance street crossing of defendant's railroad by alleged negligence in operating the latter. The issues for trial arose upon a general denial of the petition.

The facts of the relationship of the plaintiff and the death of the husband were admitted, but, as an important issue arose on a refused instruction in the nature of a demurrer to the evidence, it will be proper to briefly outline the testimony in so far as it is supposed to establish plaintiff's case. The substance of the evidence given by the principal witness for plaintiff is as follows, viz.: She knew deceased well. On the day he was killed she was standing on the west side of the railway tracks on Lesperance street, at about four or five o'clock intending and waiting to cross the railway tracks there, and to go down to the river; when she first saw Wilkins he was on the east side of the train; she had been standing on the west side of the train about fifteen minutes before the accident happened; during that time the train was standing still, and "they were switching;" the train was "headed" south; "they" were backing up the cars at that time; Wilkins just before he was killed was standing on the east side of the train, near a flat car; there was an opening between the ends of the cars, as he intended or attempted to cross, about as "narrow" as a door; "plenty of room enough for one to go through;" she had been standing there, while this space was there, before Wilkins attempted to go through, five minutes or more. There was no man stationed on the back end of the train, and no men on the top of the cars that were shoved back, north of the street, and no gate across the street there; there was no bell rung or whistle sounded, as "they" moved the train back; the brakeman connected with the train was on the west side of the train, and the watchman was on the same side "further south," and he was talking with witness and another lady; she saw no other person standing there; the brakeman was standing on the west side of the train close up to the car; when Mr. Wilkins attempted to go through, the part of the train pushed up from the south crushed him; Wilkins' legs were broken and his stomach crushed.

On cross-examination witness said that she knew this crossing well, and had been over it frequently; that at the crossing there is a plank road over the same half as wide as a street; that she had seen the cars back up before and make an opening for teams to go through, and had frequently seen an opening at said crossing between the cars of twenty-five or thirty feet in width, so that people could cross there on the plank road; that she had frequently seen the railway employes make the opening there after backing up trains; that, when she first went down there, there was a train on the crossing, and Wilkins was standing on the east side and his team was on the west side; that they were switching cars back and forth there; that she had been standing there ten minutes before the opening was made; that she and another lady were waiting there to go across the track; that she didn't attempt to go through when they made the little opening of about two feet and was waiting for them to make a wider opening; that the opening was so narrow that Wilkins had to go through sideways, and that as he got in front of the draw-bars they came together and crushed him.

The plaintiff then offered several city ordinances to the following effect (giving only their substance) viz.: That defendant should maintain gates and place a watchman at the street crossing in question. That watchmen at such crossings should display at the cars in the daytime a red flag and at night a red light.

That cars, etc., propelled by steam power should not obstruct any street crossing by standing longer than five minutes and that when moving the bell of the engine should be constantly sounded and a man should be stationed on the top of the car farthest from the engine of any backing train, to give danger signals.

That no freight train should be moved in said city unless well manned with experienced brakemen at their posts, so stationed as to see the danger signals and hear the signals from the engine.

One of defendant's witnesses described the movement of the train in question as follows: The train by which Wilkins was injured was on track 7, in what is called the east yard at the Lesperance street crossing; it was a lot of cars that had been switched from trains that had come off the road; they were engaged in shoving the cars from the south end of track number 7 to the north end in order to make room; there were eighteen cars in said train, part box and part flat cars; he did not see Wilkins till after the accident; the accident happened on track 7; at that time there were eleven cars of said train attached to the engine south of the crossing, and seven cars, that witness had cut off, north of the crossing, and there were more cars north of them; they were...

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