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

• Decision Date: 30 April 1883
• Citation: 77 Mo. 508
• Parties: PRICE v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

77 Mo. 508

PRICE

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Geo. W. Easley for appellant.

W. D. Carlisle and A. J. Blethen for respondent.

HENRY, J.

This action is for the recovery of damages for the death of plaintiff's husband caused by injuries received by him, at defendant's round-house in the City of Kansas, on the 24th day of January, 1879. The deceased was employed by defendant as a fireman upon its locomotive engines. Plaintiff had judgment for $5,000, from which defendant has appealed.

It was stipulated that the following facts should be taken as admitted by both parties: That the engine-house was not lighted on the night of the injury to Price, in any other manner than by the small hand-lamps carried by a portion of the employes; that the deceased, and the person who backed the engine into the stall, were both well aware of the fact that the engine-house was not lighted; and both the deceased and the said person handling the engine had known that said engine-house had not been lighted from the time it was built, up to the time of the accident; that the deceased lay down between stalls two and three in said engine-house, from a half an hour to an hour before the injury, and fell asleep; and in his sleep, a short time before the injury, turned over so that his foot lay on the rail of the track of the stall, and that the engine was backed over or against his foot by one of defendant's agents or servants, so that his foot was injured to such an extent that amputation became necessary, from which amputation he died; that plaintiff was the widow of the deceased, R. B. Price, and still is such widow.

The testimony for plaintiff proved that the railroad tracks in a round-house are used for putting engines on and are called “stalls;” that the space between them is eight or ten feet wide, and there are no walls or fences between the stalls. The round-house was built in August or September, 1878, and the deceased and other employes of defendant, with the knowledge and consent of the company, had been sleeping in the round-house in the space between the stalls, the most of the time after its erection, until the death of the deceased. He was seen asleep on the night in question, within two or three feet of the track. A short time before the engine which passed over his leg went into the round-house, no part of his body was on the track. There were no lights in the house at the time except small tin hand-lamps or torches carried about by the men in their hands. There were no stationary lights. The fireman who ran the engine in knew that men were sleeping between the stalls. Requisition had been made by the foreman of the engine-house for lights for this house on the 9th day of September, 1878, but they were not furnished until after Price was killed. The bell on the locomotive was rung as usual that night when it started to the round-house, about sixty yards from the round-house. This was the only and usual signal. The employes were permitted and encouraged by the foreman of the enginehouse to sleep in the round-house.

1. MASTER AND SERVANT: damages.

These were substantially the facts established by the evidence, and the court refused an instruction asked by defendant, that on these facts, plaintiff was not entitled to recover. The deceased and the fireman, who ran the engine into the round-house, were fellow servants, and if his death was occasioned by...