Lenix v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1882
• Parties: LENIX v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 86

LENIX

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.

This was an action for damages for the loss of an arm by being run over by defendant's locomotive and tender. The diagram on the next page represents the locality at which the accident occurred.

Plaintiff testified that the accident occurred at night; that it was very dark and the wind was blowing very hard; that he was employed as brakeman on the North Missouri Railroad; that he got on an engine of that company at the State Line House and rode eastward to within sixty or seventy feet of the Fort Scott Railroad track in Santa Fe street, where he got off on the side next to the Missouri Pacific track, which was only eight or ten feet distant; stopped to wait till the North Missouri train should pass, and while standing there was struck by defendant's tender running in advance of the engine, and was knocked down and run over by both tender and engine; was standing still, with his back to defendant's track when struck; as he stepped from the North Missouri engine, he looked both east and west, and could not and did not see any train approaching on the Missouri Pacific track; when the engine had passed over him he looked after it and could see no headlight; there was none on that part running in advance; no signals were given while approaching Santa Fe street; if there was any light it was out of sight; gave a careful look behind and thought he could see ahead; was always careful at that place; was familiar with it; tracks very thick there and trains run reckless.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Cross-examined, the witness said that he was careful because he knew the danger; the ground was open; a headlight could be seen in either direction a quarter of a mile, east or west; heard his own train whistle; it was moving three or four miles an hour when he got off; would say the Missouri Pacific train was running at least ten or twelve miles an hour, running west.

James McLaughlin, a witness for plaintiff, testified that he was conductor of the train on which plaintiff was brakeman; was standing on south side of his train when the accident occurred; saw the Missouri Pacific train pass; when he first saw plaintiff he was wheeling around between the two tracks, had been hurt; Pacific train was moving slowly, could not determine the rate of speed; heard no signals from any train except the North Missouri; saw no headlights or signal lights, did not notice any; the Missouri Pacific engine might have whistled, or its bell been rung and he not heard it; was not thinking of any other train coming, but would have noticed one if it had had headlights.

N. Wager, yard-master of the North Missouri Railroad, a witness for plaintiff, testified that the Missouri Pacific train did not stop before crossing Santa Fe street; did not give any signals that he heard; they might have been given, but he did not hear any; if they were given it was while the North Missouri engine was whistling; noticed no light on Missouri Pacific train but the cab light; there might have been others, but he did not see them; would not say that he did not see a headlight; did see a headlight, but whether lighted or not he could not say; the train was going ten or twelve miles an hour; the noise of the North Missouri train could not have drowned the ringing of a bell; the North Missouri had a switch engine near by blowing off steam at the time.

W. H. O'Brien, a witness for plaintiff, testified that he was engineer in charge of the engine on which plaintiff was riding; saw plaintiff get off, but did not see the accident; saw the Missouri Pacific engine, but could not say how fast it was moving; heard no bell...