Moody v. Pacific R.R. Co.

• Citation: 68 Mo. 470
• Parties: MOODY, Appellant, v. THE PACIFIC RAILROAD COMPANY.
• Decision Date: 31 October 1878
• Court: United States State Supreme Court of Missouri

68 Mo. 470

MOODY, Appellant,

v.THE PACIFIC RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1878.

Appeal from St. Louis Circuit Court.--HON. J. K. KNIGHT, Judge.

Davis, Thoroughman & Warren for appellant.

Thos. J. Portis and E. A. Andrews for respondent.

NAPTON, J.

This action is brought by Anne Moody, the wife of Augustus Moody, to recover $5,000 under the 2nd section of the damage act for the killing of her husband, occasioned by the negligence and unskillfulness of the employees of defendant.

1. PETITION: amendment.

The original petition stated that the defendant, by its agents and servants, carelessly, recklessly and negligently caused one of the defendant's locomotives, with a train of cars attached thereto, to strike, wound and kill the husband of the plaintiff. The amended petition, filed more than a year after the death of Moody, charges that by the negligence and unskillfulness of defendant's employees whilst running said cars, the said Moody was struck and killed. The amendment, in our opinion, sets up no new cause of action. It is true that the original petition charges the defendant with occasioning the death of Moody, but by the carelessness and negligence of its servants; and so it is substantially charged in the amended petition.

In order to determine the propriety of the rulings of the circuit court which tried the case, both in regard to the admission and exclusion of evidence, and in regard to its instructions to the jury, it may be well to state the facts, about which there was no question. The plaintiff's husband, Moody, was postmaster at Webster station on the Pacific Railroad. He was in the habit of handing over the mail about 8:40 p. m. to a passenger train which passed the station about that time for St. Louis. His store and post office were on the opposite side of the railroad to that where the depot was and platform from which the mail bags had to be handed over. There was evidence that he was in the habit of waiting till the last moment in starting from his office, and that he was rebuked for this carelessness or recklessness by some of the officers of the road. On the night when the fatal accident occurred, he heard a train about the time the mail train was expected and usually passed, picked up his mail bags, saw the approaching train at a distance of 1200 feet west, but supposing the train would stop, although running then at great speed, attempted to cross over in front of the locomotive and was killed. There is a conflict of testimony as to whether the bell was rung or the whistle sounded. It appeared that the train was a freight train which had been ordered, because the regular train was behind time, to go to St. Louis, and passed Webster station at the very time the mail train would have passed had it been on time.

3. CROSSINC RAIL ROAD TRACK: contributory negligence.

In regard to the evidence on the trial, we are all of opinion that the court ought not to have permitted certain joint rules made by the defendant and the Kansas Pacific in relation to a track used jointly by both companies in Kansas, upwards of 200 miles west of Webster, to be read to the jury. They were entirely irrelevant. The object of this evidence was to leave the impression that this irregular train...