Boyd v. Wabash Western Ry. Co.

Citation16 S.W. 909,105 Mo. 371
PartiesBOYD v. WABASH WESTERN RY. CO.
Decision Date29 June 1891
CourtUnited States State Supreme Court of Missouri

Appeal from circuit court, Jackson county; T. A. GILL, Judge.

John W. Henry, F. W. Lehmann, Geo. S. Grover, and H. S. Priest, for appellant. W. J. Hollis, for respondent.

BRACE, J.

In this action the plaintiff recovered judgment for $5,000 damages for the alleged negligent killing of her husband by one of defendant's trains. At the close of plaintiff's evidence the defendant demurred, and, its demurrer being overruled, the case was submitted to the jury on that evidence, under the following instructions: The court gave the following instruction at the request of plaintiff: "The court instructs the jury that notwithstanding you may find from the evidence that the deceased, Charles Boyd, was guilty of negligence in attempting to cross the track of defendant at the place and time that he did, yet if you further find and believe from the evidence that the servants of the defendant, managing the train, saw Boyd in danger, or, by the exercise of reasonable care, prudence, and watchfulness on their part, might have seen Boyd going into peril, under circumstances showing that he did not observe the near approach of the train, and the danger to which he was exposing himself, in time to have prevented the injury by using all the means at their command to slacken the speed of the train, having due regard for its safety and the safety of the passengers, and they failed to do so, then plaintiff is entitled to recover, and you should find for her, and assess her damages at the sum of five thousand dollars." The court gave the following instruction at the request of defendant: "The court instructs the jury that the deceased had no right to rely upon the customary speed of defendant's trains in passing through the town of Renick, or upon the fact that defendant's regular passenger train had been in the habit of stopping at a certain place, or upon the rules of defendant read in evidence, and, in reliance upon such facts, to attempt to cross in front of the train by which he was struck and killed." The court gave the following instructions of its own motion: "The court instructs the jury that it was the duty of deceased to look and listen, if he could see and hear the train, for the purpose of avoiding injury by it; and if, at any time before he was struck, he might have stopped his progress and avoided injury, then he was guilty of contributory negligence. The court instructs the jury that if the servants of defendant in charge of its train saw the deceased approaching the track, then they had the right to presume that he would not attempt to cross the track immediately in front of the train, and to proceed without abating the speed of the train upon such presumption; but if the defendant's servants managing the train saw, or might have seen by exercise of ordinary care, in time to have avoided the injury to deceased, that the deceased was running along heedlessly, and without observing the approach of the train, and that he was about putting himself in front of the train through and by his own carelessness and heedlessness, then it was the duty of the said servants of the defendant to use every reasonable effort on their part to avoid the injury; and if they failed so to do under such circumstances, and the deceased, Boyd, was killed by reason thereof, the jury should find for the plaintiff." The evidence for the plaintiff disclosed the following facts: Charles Boyd, the husband of plaintiff, was an hotel-keeper in the town of Renick, in Randolph. His hotel was situated about 100 feet north of the depot. The defendant's tracks are between the hotel and the depot. A plank-walk leads from the hotel across the tracks to the platform of the depot, and was used as a public crossing. In the prosecution of his business, he was in the habit of going to the depot upon the incoming of all passenger trains stopping at that station. One of defendant's regular passenger trains, the mail from Kansas City to St. Louis, was due from the west at Renick daily at 12:30 P. M., and usually passed over the crossing from the hotel at a speed of three or four miles an hour, stopping at the platform just east of the crossing. On the 26th of September, 1887, an excursion train approached Renick from the west on the time of the Kansas City and St. Louis mail, and it signaled its approach by whistling at the usual place. The train from the time it whistled until it passed the depot, at which it did not stop, was running at about 40 or 45 miles an hour. As the train approached the depot its bell was rung, and kept ringing, but its speed was not checked. When Mr. Boyd heard the train whistling he was in the house. He immediately came out, and started for the depot on the plank-walk in a run or "trot," and, without breaking his gait, entered upon the track immediately in front of the engine, and was struck just as he was about to make his...

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154 cases
  • Dutcher v. Wabash R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 9, 1912
    ...peril, and, as a reasonable man, he should have then checked his train. (Train running 12 to 15 miles per hour in St. Louis.) In Boyd v. Railroad, 105 Mo. 371 , the plaintiff's husband stepped upon the track of a railroad running through the town of Renick immediately in front of a train ru......
  • Jackson v. Southwest Missouri R. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • May 5, 1913
    ...time and place. See authorities, supra; also Kelsay v. Railroad, 129 Mo. 362 ; Campbell v. Railroad, 175 Mo. loc. cit. 183, 184 ; Boyd v. Railroad, 105 Mo. 371 ; Moore v. Railroad, 176 Mo. loc. cit. 544 , and cases cited; Walker v. Railroad, 193 Mo. 453 In Kelsay v. Railroad, 129 Mo. 362, a......
  • Perkins v. Terminal Railroad Assn., 33864.
    • United States
    • United States State Supreme Court of Missouri
    • March 24, 1937
    ...the other factual elements of the doctrine being proven to exist. One of the first cases of this kind was Boyd v. Wabash Western Ry. Co., 105 Mo. 371, 376, 16 S.W. 909, 910, where the jury were instructed that if the trainmen "saw Boyd in danger, or, by the exercise of reasonable care, prud......
  • Willig v. C., B. & Q. Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 21, 1940
    ...v. Mo. Pac. Ry. Co., 238 Mo. 33, 141 S.W. 861; Giardina v. Railroad Co., 185 Mo. 330; Farris v. Railroad Co., 167 Mo. App. 392; Boyd v. Wabash, 105 Mo. 371; Holand v. Mo. Pac. Ry. Co., 210 Mo. 338, 109 S.W. 19; Harlan v. St. Louis, etc. Ry. Co., 64 Mo. 480; Carton v. St. L.-S.F. Ry. Co., 10......
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