Maher v. Atlantic & Pacific R.R.

Citation64 Mo. 267
PartiesMARGARET MAHER, Respondent, v. ATLANTIC & PACIFIC RAILROAD, Appellant.
Decision Date31 October 1876
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court.

J. N. Litton, for Appellant, cited: Shearm. & Redf. Negl., § 478; Phila. & Reading R. R. vs. Hummel, 44 Penn. St. 375; Railroad vs. Skinner, 19 Penn. St. 298; Railroad Co. vs. Norton, 24 Penn. St. 469; Telfer vs. Northern R. R. Co., 1 Vroom [N. J.], 192; Withers vs. North Kent R. R. Co., 27 Law J. Exch. 417; Sharrod vs. London & N. W. R. R., 4 Exch. 580; Isabel vs. Han. & St. Joe. R. R. Co., 2 Cent. Law. J. 590; Shearm. & Redf. Negl. §§ 25, 36; Karle vs. K. C., St. Joe. & C. B. R. R. Co., 55 Mo. 484; Finlayson vs. C. B. & Q. R. R. Co., 1 Dill. C. C. 579; Railroad Co. vs. Skinner, 19 Penn. St. 298; Fort W. & C. R. R. vs. Evans, 53 Penn. St. 250; Fleytas vs. Pontchartrain R. R. Co., 18 La. 339; Jeffersonville, Madison, &c. R. R. vs. Goldsmith, 47 Ind. 43; Evansville R. R. vs. Hiatt, 17 Ind. 102; Maynard vs. Boston & M. R. R. Co., 115 Mass. 458; Munger vs. Tonawanda R. R. Co., 4 Comst. [N. Y.] 357; Artz vs. C., R. I. & P. R. R. Co., 34 Ia. 153; Vandegrift vs. Rediker, 2 Zab. 185; Cin. D. & H. R. R. vs. Waterson, Ohio St. 424; Tower vs. Worc. R. R. Co., 2 R. I. 404; Louisville R. R. vs. Ballard, 2 Metc. (Ky.) 177; Gillis vs. Penn. R. R. Co., 59 Penn. St. 122; Ilott vs. Wilkes, 3 B. & Ald. 304; Hounsell vs. Smith, 7 C. B. [N. S.] 731; Binks vs. South Yorkshire R. R., 3 Best & S. 244; Phila & R. R. R. Co. vs. Spearen, 47 Penn. St. 300; Wilds vs. Hudson R. R. Co., 24 N. Y. 433; Catawissa R. R. Co. vs. Armstrong, 49 Penn. St. 193; Conlin vs. Charleston, 15 Rich. [S. C.] 209; Delafield vs. Union Ferry Co., 10 Bosw. [N. Y.] 218; New Jersey Express Co. vs. Nichols, 33 N. J. L. [4 Vroom] 430; Cunningham vs. Gyness, 22 Wis. 248.

J. S. Laurie, for Respondent, cited: 40 Mo. 156; 37 Mo. 552; 43 Mo. 383; 50 Mo. 563; 3 Mees. & W. 247; 10 Mees. & W. 545; 1 Ad. & Ell. [N. S.] 28.

HENRY, Judge, delivered the opinion of the court.

The plaintiff is the widow of John Maher, who was killed on the Pacific railroad by a train of cars going west on the night of the 5th of October, 1870. She sued the company in the circuit court of Franklin county, under the second section of the damage act, in February, 1871.

The petition is in the usual form, and the answer a general denial, except that it admits defendant's corporate character; that John Maher was plaintiff's husband; and specially avers that Maher “was a trespasser on the road, and was guilty of negligence directly causing and contributing to his death.”

There was a change of venue to St. Louis county, and at a special term of the circuit court of St. Louis county, in February, 1874, there was a trial of the cause resulting in a verdict for plaintiff for $5,000.

In proper time defendant filed its motion for a new trial, which was overruled, and judgment was then rendered on the verdict. From this judgment there was an appeal to the General Term, where the judgment was affirmed, and from that judgment it has appealed to this court.

It appears from the evidence, that on the morning of the day of the disaster John Maher left home for his work of cutting brush on the section of the road on which he was employed as a section man; that he was unwell, and that when he got to his place of work he was somewhat intoxicated, and went to the house of the section foreman, where he remained about three hours, when he went to Gray's Summit. About seven o'clock that evening he was seen by two or three witnesses on a bridge over the railroad cut. By another witness he was seen after that, going up the track towards his home. This was about a half hour before the express train passed, by which, the evidence tends to show, he was killed.

There was evidence tending to show that as late as six o'clock that afternoon deceased was intoxicated. Singleton, who testifies to having seen him on the bridge about six o'clock, says he was drunk, singing and talking. May, who met him afterwards going up the track towards his home, says he thought he was drunk. It was after seven o'clock when he was found dead on the track.

It seems from the testimony that deceased was killed at, or very near, a culvert, and fragments of his body were found scattered along the road west of the culvert for one hundred and fifty yards. East of the culvert, about two hundred and fifty yards, is a cut thirty or forty feet deep, and one hundred and fifty or one hundred and sixty yards long, and while in this cut one on a train could not see an object on the track at the culvert.

The only person who testifies to having seen deceased after May met him was his son, Frank Maher, who with his brother John was sent by their mother to see about their father; he testifies that as soon as he got upon the straight track he saw the express train just coming out of the cut, and he stooped down and thought he saw an object on the track which he took to be his father, and when he reached the place where he thought he saw the object, he discovered what remained of his father. He an John both fix the distance at which Frank says he discovered the object which he took for his father, at four hundred or five hundred yards. It appears to have been a bright moonlight night. John did not see the object seen by his brother. Frank testified that the train was running as fast as he ever saw it run. John does not testify as to the speed of the train. The engineer thinks they were running less than twenty miles an hour; thinks he could have seen Maher if he had been on the track, either sitting, lying down, or standing up.

The defendant asked the following instructions, which were all refused:

1. “The court instructs the jury that, under the evidence given in this cause, they will find for defendant.”

2. “The court instructs the jury that there is no evidence that the train was being run at an improper rate of speed, and they will conclusively presume that the rate of speed at the time of the accident was a lawful rate of speed.”

3. “The court instructs the jury that under the evidence the defendant was not required to ring the bell or sound a whistle at the place where the accident happened, or at all, unless the men in charge of the locomotive knew that Maher was on the track.”

4. “If the jury believe that the engineer did not see Maher, then the court instructs the jury that they must find a verdict for the defendant, unless they believe the engineer was guilty of greater carelessness in not seeing Maher than Maher was in being on the track.”

5. “The court instructs the jury that if they believe that Maher was on the track of defendant when he was killed, and that he was guilty of negligence which directly contributed to his death in being on said track at that time, and if they furthe believe that the men in charge of the locomotive did not see Maher at all, or know that he was there, or in danger, then the jury will find a verdict for the defendant.”

6. “The court instructs the jury that in considering whether the defendant was guilty of negligence in the premises, they will confine their attention to the conduct of the engineer of the train in question.”

7. “The court instructs the jury that John Maher had no right to be on the track of defendant at the time and place where the evidence shows that he was killed, and that he should not have been there.”

8. “If the jury believe that John Maher was at the time of the accident intoxicated, and that if he had been sober he would not have been killed, then they will find for defendant.”

9. “The jury are instructed that the law presumes that the men in charge of the train used every precaution that careful and prudent men would have used under the same circumstances, and that the presumption is conclusive, unless the jury believe the weight of evidence adduced before them shows that they did not, and unless the jury believe the evidence shows they did not, then they will find for the defendant.”

10. “The court instructs the jury that if John Maher was guilty of any negligence that directly contributed to his death in any degree, they will find a verdict for defendant.”

11. “The court instructs the jury that, under the evidence in this case, John Maher was guilty of negligence in being on the track at the time of the accident.”

12. “The mere fact that John Maher was killed by the train in question is not sufficient to authorize the jury to find a verdict for the plaintiff in this case, but they must find a verdict for the defendant unless they believe from the evidence two other facts, namely: 1st, that the men in charge of the train in question failed to use some precaution that careful railroad men would have used under the same circumstances, and that if said precaution had been used John Maher would not have been killed; and 2d, that John Maher himself used every precaution that a careful, prudent man would have used to avoid the danger which resulted in his death. And if they believe either that the engineer used every precaution that a careful engineer would have used under the same circumstances, or that Maher failed to use every precaution that a careful man would to avoid the danger, and thereby contributed directly to his death, then in either case, they will find a verdict for the defendant.”

13. “If the jury believe that John Maher did not use every precaution to avoid danger that a careful, prudent and sober man would have used, and by such failure directly contributed to his death, then they will find a verdict for the defendant. And if the fact be that John Maher was drunk, that fact does not relieve him from using the care and caution that a sober man would have used under the same circumstances.”

14. “The court instructs the jury that if when John Maher started to go home it was a short time before the express train was due, and he knew, or ought to have known, that fact, and he then walked homeward on the track, it was his duty to...

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