27 Mo.App. 202 (Mo.App. 1887), Damrill v. St. Louis & S. F. Ry. Co.

Citation:27 Mo.App. 202
Opinion Judge:LEWIS, P. J.
Party Name:STEPHEN DAMRILL, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
Attorney:JOHN O'DAY and E. D. KENNA, for the appellant.
Judge Panel:Judge Thompson concurs. Judge Rombauer is absent.
Case Date:June 14, 1887
Court:Court of Appeals of Missouri
 
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Page 202

27 Mo.App. 202 (Mo.App. 1887)

STEPHEN DAMRILL, Respondent,

v.

ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

June 14, 1887

APPEAL from the Greene County Circuit Court, JAMES R. VAUGHAN, Judge.

Reversed.

JOHN O'DAY and E. D. KENNA, for the appellant.

OPINION

LEWIS, P. J.

The plaintiff sued, before a justice of the peace, for damages caused by the defendant's engine running over a wagon, team of mules, and set of harness, of the value of one hundred and fifty dollars. In the circuit court, on appeal, it appeared that, at the place where the injury occurred, the railroad and a public highway crossed each other at right angles, the railroad running north and south and the highway east and west. A locomotive and tender were running from north to south, while the plaintiff's wagon, driven by George Ketney, was approaching the track from the east. A few extracts from the testimony will best show how the case was put to the jury.

Ketney testified: " I had been driving in a trot, and when I came close to the railroad, I slacked down to an ordinary walk. * * * As I came down to the crossing, I looked off from my right hand, and heard no noise. * * * I looked to see if there was any train coming, and did not see any. I listened to hear, and did not hear any. I heard no bell nor whistle rung. There was nothing attached to the engine but a tender. As near as I can now tell, the engine was running like lightning. The first I discovered there was an engine was when I heard the ringing of the track, when I came up to it--by which I mean the ringing sound on the iron. As the mules' feet went onto the track, I looked over my shoulder, and the engine was right onto me--the engine was ten steps away. I instantly pulled back the lines, and pulled the mules to the left, when the engine struck us. * * * It was a bright day, and was not raining. The wind was blowing very hard, from the south to the north. The railroad, at this point, is straight for from a quarter to a half a mile. The farms adjoining it and the wagon-road are prairie farms. I did not, at any time before reaching the crossing, stop still. I changed the gait of the team from a trot to a walk, but did not stop still. After I got upon the railroad, there was nothing to prevent my seeing down the track, in the direction from which the train came, for a...

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