76 Mo. 80 (Mo. 1882), Powell v. Missouri Pac. Ry. Co.

Citation:76 Mo. 80
Opinion Judge:SHERWOOD, C. J.
Party Name:POWELL v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Attorney:T. J. Portis and S. H. Priest for appellant. Jno. F. Philips for respondent.
Court:Supreme Court of Missouri
 
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Page 80

76 Mo. 80 (Mo. 1882)

POWELL

v.

THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882

Appeal from Johnson Circuit Court. --HON. NOAH M. GIVAN, Judge.

REVERSED.

T. J. Portis and S. H. Priest for appellant.

Jno. F. Philips for respondent.

SHERWOOD, C. J.

The plaintiffs bring this action under the Damage Act, because of the death of their son, who was fatally injured by defendant's cars. We rest our decision upon the evidence introduced by the plaintiffs themselves in this cause, waiving all other questions, whatsoever, as being altogether immaterial.

That evidence in substance and in brief declares that the son was a lad between fifteen and sixteen years of age accustomed to go about the cars; to transact business there with the consent of his father, with whom he had been a great deal on the cars shipping stock, and who had often warned him for three or four years before the occurrence of the accident, of the dangers attendant on proximity to the cars, but who nevertheless permitted him to go about the town of Holden, and the streets and depot, anywhere, regarding him as competent to take care of himself; that the son, in consequence of the facts aforesaid, was acquainted with the arrival and departure of the trains; that on the fatal evening he went down to the train to get newspapers from the express car for Metzeler & Smith, in whose employ he then was by his father's permission; that a train of cars coming from the west, such as that by which the son was killed, could be seen approaching for a mile or more when the track was clear, and that the track had to be clear in order for the train from the west to come in on the main track, its customary one, and the one on which the accident occurred; that the east end of the switch was distant from the street crossing 200 yards or more; that the train in question, No. 4, was heard to approach, the impression of one witness being that it gave the customary signal, or station whistle, which was heard before he saw the train reach the west end of the switch, about a quarter of a mile distant; that the boy was not seen by one witness, who was within a few feet of where the accident occurred, and who watched the approaching train, when he first looked; that he looked in another direction for a very short space of time, standing in between the tracks, and then...

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