Kelly v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1879
• Citation: 70 Mo. 604
• Parties: KELLY, Appellant, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY.
• Court: Missouri Supreme Court

70 Mo. 604

KELLY, Appellant,

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Livingston Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

Waters & Winslow and Dixon & Henry for appellant.

Jas. Carr for respondent.

NORTON, J.

This suit was instituted by plaintiff in the circuit court of Livingston county, for the recovery of $5,000 damages under section 2, chapter 147 of the general statutes. It is substantially alleged in the petition that Thomas Kelly, who was the husband of plaintiff, took passage on defendant's road at the town of Breckenridge, to be carried as a passenger to the town of Mooresville in Livingston county, a station on defendant's road; that defendant negligently and unskillfully failed to stop its train at the station at said town of Mooresville, but only slackened its speed, so that it moved about half as fast as an ordinary man generally walks; that said Thomas Kelly, as said train reached the place, made ready to alight, and on learning that said train would not come to a full stop, but would soon go past said place and, on being told by defendant's agent to alight, that said Kelly with due and ordinary care and before it was discovered that the speed of said train was increased, and whilst it was yet moving slowly, did attempt to alight from said train at the place for stopping, and without fault on his part, but through the negligence of defendant was thrown from the train to the ground, under the same and killed by the cars of defendant. The answer of defendant denied all the allegations of the petition, and alleged that whatever injuries had been received by said Kelly were the result of his own carelessness, recklessness and negligence. At the close of the evidence of both plaintiff and defendant, the court instructed the jury that under the pleadings and evidence, the plaintiff could not recover; whereupon plaintiff took a non-suit, which the court refusing to set aside on a proper motion for that purpose made, defendant brings the case here by appeal.

The chief ground of error relied upon for a reversal of the judgment is the action of the court in withdrawing the case from the jury and thereby, as it is claimed, invading their province. The proper determination of this question necessitates a review of the evidence. It tended to show that Kelly, the husband of plaintiff, in September, 1871, purchased a ticket at Breckenridge, a station on defendant's road, and about nine o'clock at night entered an eastern bound train as a passenger to be carried to Mooresville, it being the first station east of Breckenridge; that when the train approached within three or four hundred yards of the said station, at which defendant was to get off, the engineer whistled down brakes; that the speed of the train was slackened and it passed the depot without stopping, going about as a man ordinarily walks; that the dead body of Kelly was found that night, about ten o'clock, under a western bound train of defendant, by which train, according to the evidence of witnesses, Glenn and Kelly, it had been dragged from the west end of the platform from two to four hundred feet. Kelly testified that he saw that night, some of the remains on the ties within sixty or seventy feet of the depot; that upon an examination next morning he found that the remains came closer to the depot than he had seen them the night before. The platform extended ninety feet west of the depot. Glenn, another witness, testified that there were blood and pieces of clothing sticking to the ties from the west end of the platform to where the body was found, under the cars of the west bound train.

The evidence on the part of defendant tended to show that Kelly, when he got on the train at Breckenridge, was intoxicate and that, as the train was approaching the depot at Mooresville, he got up saying he would get off, and went out on the platform; that witness followed him out but saw nothing of him. The conductor testified that the train stopped at Mooresville about ten seconds, that there was one passenger on the train with ticket to that place, that he did not know him or see him alight; that he saw some one on the platform, saw the brakeman there, asked him if the man had got off, to which he replied: “all right, man is off here.” Bloom, the brakeman, swears that the train made a short stop at Mooresville station, that he first saw the man going up the rise of the platform, and that, in response to an inquiry of the conductor if the man was off, he answered: “man off, all right;” states that he testified on a former trial that the man pitched on his hands and had not got up when he answered all right. Several witnesses testified that the body of Kelly, when struck by the western bound train, was lying on the track west of the platform and was dragged by this train from 150 to 300 feet. There was also evidence tending to show that Kelly was seen in a saloon in Mooresville after the eastern bound train, on which he was a passenger had passed the station, and also that Kelly and some other persons were heard quarreling on the...