Maynard v. Chicago, B. & Q. R. Co.
| Decision Date | 01 May 1911 |
| Citation | 137 S.W. 58,155 Mo.App. 352 |
| Parties | DANIEL W. MAYNARD, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.
Judgment reversed.
Culver Phillip & Spencer for appellant.
J. N Walker and W. H. Hayes for respondent.
This is an action for personal injuries plaintiff alleges were caused by the negligence of defendant in the operation of one of its trains. The answer contains a general denial and a plea of assumed risk. The cause is here on the appeal of defendant from a judgment of eight hundred dollars recovered by plaintiff in the circuit court. The injury occurred October 24, 1907, on defendant's right of way, at a point about two miles west of Easton and eleven miles east of St. Joseph. Defendant was widening its railroad and plaintiff and his team, together with other men and teams, were working with scrapers enlarging the embankment. The railroad was being operated and many trains passed daily. For east-bound trains the track was on an up grade and reverse curves added to the work of locomotives pulling heavily loaded freight trains. A meat train of twenty-five or thirty cars came from the west at about two o'clock in the afternoon and when its locomotive was nearly opposite one of the scraper teams (not plaintiff's)--a team which happened to be facing west--took fright, wheeled around and ran away. Plaintiff, who was east of this team, driving his own team, which was headed east, was struck by the runaway team or scraper knocked down and injured.
The petition alleges "that the defendant's agents and servants managing its said railroad and in charge of locomotive engines and trains running thereon, on said 24th day of October, 1907, along and by the place where the plaintiff and others were at work as aforesaid did carelessly and negligently and unskillfully conduct themselves in managing a certain locomotive engine and train of freight cars then and there in charge of the agents and servants of the defendant's while passing the point where the plaintiff and other teamsters were engaged in dragging dirt upon defendant's roadbed as aforesaid, and failed to give any signs of the approach of same and did carelessly and negligently manage its locomotive engine by letting off and discharging steam from its locomotive engine and from the cylinders thereof in great volume, with much noise and hissing sound, and which made loud and unusual noise; by reason of which negligent and careless act of defendant's agents and servants in charge of its locomotive engine in blowing off and discharging steam as aforesaid, and making loud and unusual noise as aforesaid that several teams of horses, including plaintiff's team, then and there working upon defendant's railroad as heretofore stated took fright, became unmanageable and ran away, knocked the plaintiff down, ran over him, dragging the scrapers over the plaintiff, whereby he was greatly injured," etc.
It will be observed the gravamen of the cause stated is negligence in allowing the engine unnecessarily to emit steam in a volume to produce a loud,...
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