Miller v. Engle

Decision Date11 January 1915
Docket NumberNo. 11263.,11263.
Citation185 Mo. App. 558,172 S.W. 631
PartiesMILLER v. ENGLE et al.
CourtMissouri Court of Appeals

After trial had begun it was discovered that one juror was deaf. The court discharged him, and offered to call either another panel or another juror. The defendants failed to avail themselves of the choice, whereupon the court called another juror. At the close of his examination, the court inquired of counsel if the new juror was satisfactory. Counsel for defendants replied: "Yes, sir; while we accept him as a juror, we except to the action of the court." Thereupon with the new juror the trial was begun anew. Held that, since the court's offer to call a new panel had been rejected and the new juror accepted, the defendant's rights were not prejudiced.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

Action by Ellen Belle Miller, by next friend, against C. J. Engle and the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendants appeal. Affirmed.

John E. Dolman and O. E. Shultz, both of St. Joseph, for appellants. Otis & Stigall and W. B. Norris, all of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff, driving in a one-horse buggy, passed under an overhead railroad crossing. Just as she was emerging therefrom, a train ran over the crossing, and her horse became frightened and ran away, throwing her out and crippling her for life. She brought this suit for damages, alleging that the fright of the horse and resulting injury to her were caused by the negligence of the defendants, the engineer and the railroad in charge of and operating the train.

The crossing was inside the city limits of St. Joseph. The surroundings at the scene of the injury are well described in the petition. It charged: That plaintiff was driving east in a public highway which was an extension of Commercial street, and upon this highway was constantly a large amount of travel. That said highway "extended east from the end of the South Park car line in said city, along the north side of and closely parallel to defendant's track for the distance of one-half mile; thence sharply south, passing beneath defendant's track, which is sustained at that point by an overhead bridge; thence east again, along the south side of and closely parallel to the defendant's track, to the city limits." That in going east along the highway on the north side of the track, and when plaintiff reached the crest of a hill, about 83 steps west of the crossing, she looked east along the track and saw it was clear. That after passing the crest of the hill it was no longer possible to see east along the track, because of a clump of trees in the right of way east of the crossing and north of the track. That before passing under the track she listened to learn of a train's approach, but heard no bell nor other signal of an approaching train. That, hearing none, plaintiff turned south and passed beneath the bridge or crossing, and just as she emerged on the south side, and was about 25 feet from the bridge, and before reaching the point where the road turns east again, a west-bound passenger train reached said bridge.

The petition then charged: First, that the defendants negligently ran the train at 35 miles per hour, in violation of an ordinance of said city which prohibited the running of an engine or train within said city at a greater speed than 5 miles per hour; second, that the defendants negligently and carelessly omitted to give any warning of the train's approach to the crossing, and negligently failed to ring any bell, in violation of an ordinance of said city which provided that "the bell of each locomotive engine shall be rung continuously within said city"; third, that when said train reached said overhead bridge defendants negligently sounded the whistle "unnecessarily, repeatedly, and with unnecessary, unusual, and deafening shrillness," that defendants "unnecessarily sounded said whistle, well knowing, or when by the use of ordinary care they could have known, that said sounding of the whistle would frighten and terrify the horse which plaintiff was driving," and that defendants "saw, or by the use of ordinary care could have seen, that plaintiff's horse was being frightened by said whistle and was becoming unmanageable, but that well knowing these facts they continued said unnecessary and careless sounding of the whistle," all of which was in violation of an ordinance of said city forbidding "the blowing of steam whistles on railroad locomotives within the city limits, except in cases of immediate danger."

The petition then alleged that:

"On account of the aforesaid negligent acts the horse which she was driving became frightened and unmanageable; that it...

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34 cases
  • Perkins v. Kansas City Southern Ry. Co., 29380.
    • United States
    • Missouri Supreme Court
    • April 2, 1932
    ... ... App. 418, 177 S.W. 724; Carter v. Railroad, 193 Mo. App. 223, 182 S.W. 1061; Boyce v. Railroad, 120 Mo. App. 175, 96 S.W. 670; Miller v. Engle, 185 Mo. App. 578, 172 S.W. 631; Lang v. Ry. Co., 115 Mo. App. 500, 91 S.W. 1012; Ferris v. Railroad, 167 Mo. App. 392, 151 S.W. 979; Carter ... ...
  • Smith v. Public Service Co.
    • United States
    • Missouri Supreme Court
    • November 17, 1931
    ... ... It was merely a denial of plaintiff's cause of action. [45 C.J. 1119, sec. 697: p. 1123, sec. 703; Miller v. Engle, 185 Mo. App. 558, 580, 172 S.W. 631; Benjamin v. Railroad, 245 Mo. 598, 614, 151 S.W. 91.] As for the allegation of plaintiff's careless ... ...
  • Simpson v. St. Louis-San Francisco Ry. Co.
    • United States
    • Missouri Supreme Court
    • April 19, 1934
    ... ... Miller and Mann, Mann & Miller for ... appellant ...          (1) ... Section 6, Article 23 of the Constitution of Oklahoma, ... The above ordinance was both pleaded and proven. Irwin v ... Railroad Co., 30 S.W.2d 56; Miller v. Engle, ... 185 Mo.App. 558; Jackson v. Ry. Co., 157 Mo. 621; ... Dickinson v. Cole, 177 P. 571; Prewitt v ... Railroad Co., 134 Mo. 615; Ry ... ...
  • Smith v. Kansas City Public Service Co.
    • United States
    • Missouri Supreme Court
    • November 17, 1931
    ... ... It was merely a denial ... of plaintiff's cause of action. [45 C. J. 1119, sec. 697; ... p. 1123, sec. 703; Miller v. Engle, 185 Mo.App. 558, ... 580, 172 S.W. 631; Benjamin v. Railroad, 245 Mo ... 598, 614, 151 S.W. 91.] As for the allegation of ... ...
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