78 S.W. 284 (Mo.App. 1904), Marsh v. Kansas City Southern Railway Company

Citation:78 S.W. 284, 104 Mo.App. 577
Opinion Judge:ELLISON, J.
Attorney:Lathrop, Morrow, Fox & Moore, Cyrus Crane, O. H. Hoss for appellant. J. I. Shepherd and Scott & Bowker for respondent.
Case Date:January 04, 1904
Court:Court of Appeals of Missouri

Page 284

78 S.W. 284 (Mo.App. 1904)

104 Mo.App. 577

GRACE E. MARSH, Respondent,



Court of Appeals of Missouri, Kansas City

January 4, 1904

Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.

Judgment affirmed.

Lathrop, Morrow, Fox & Moore, Cyrus Crane, O. H. Hoss for appellant.

(1) The demurrer to the evidence should have been sustained (a) because the alleged failure to give the signals was not the cause of the accident; (b) deceased's own negligence precluded a recovery. Harlan v. Railway, 64 Mo. 480; Fletcher v. Railway, 64 Mo. 484; Harlan v. Railway, 65 Mo. 22; Zimmerman v. Railway, 71 Mo. 490; Heinz v. Railway, 71 Mo. 636; Purl v. Railway, 72 Mo. 168; Turner v. Railway, 74 Mo. 602-606; Hixson v. Railway, 80 Mo. 335-340; Fox v. Railway, 85 Mo. 679; Kelly v. Railway, 88 Mo. 534-548; Stepp v. Railway, 85 Mo. 229-234; Baker v. Railway, 122 Mo. 533-543; Hayden v. Railway, 124 Mo. 566-573; Weller v. Railway, 120 Mo. 635-653; Kelsay v. Railway, 129 Mo. 362; Loring v. Railway, 128 Mo. 349-359; Huggart v. Railway, 134 Mo. 673-679; Lane v Railway, 132 Mo. 4; Payne v. Railway, 136 Mo. 562; Hook v. Railway, 162 Mo. 569; Tanner v. Railway, 161 Mo. 572. (2) The rules laid down in the foregoing cases are not relaxed because Marsh was not driving the team. Beach on Contributory Negligence (3 Ed. ), sec. 115a; Elliot on Railroads, vol. 3, sec. 1174; Dean v. Railway, 6 L. R. A. (Pa.) 143; Township v. Anderson, 114 Pa. St. 643; S. C., 8 A. 379; Brickell v. Railroad, 120 N.Y. 290; Smith v. Railroad, 32 A. 967 (Maine) ; Miller v. Railroad, 27 N. E. (Ind.) 339; Smith v. Railroad, 38 Hun 33; Aurelius v. Railroad, 49 N. E. (Ind.) 857; Griffith v. Railway, 44 F. 574-580; Railroad v. Boyts, 45 N. E. (Ind.) 812.

J. I. Shepherd and Scott & Bowker for respondent.

(1) The court did not err in refusing to sustain appellant's demurrer to respondent's evidence, for under the testimony it was a case for the jury. Weller v. Railroad, 164 Mo. 180; Donahue v. Railroad, 91 Mo. 357; Huxhold v. Railroad, 90 Mo. 548; Kelley v. Railroad, 88 Mo. 534; Johnson v. Railroad, 77 Mo. 546. (2) The presumption of due care always obtains in favor of plaintiff in an action to recover damages for an injury sustained by him through the alleged negligence of another. Weller v. Railroad, 164 Mo. 180; Crumpley v. Railroad, 111 Mo. 152; Bluedorn v. Railroad, 108 Mo. 439; Petty v. Railroad, 88 Mo. 306; Busching v. Gas Light Co., 73 Mo. 219. (3) Deceased had a right under the law to assume that the railway company would perform its duty in regard to giving the statutory signals as it approached the crossing in question. Weller v. Railroad, 164 Mo. 180; Jennings v. Railroad, 112 Mo. 490; Crumpley v. Railroad, 111 Mo. 152. (4) Before the court can declare as a matter of law that the deceased was guilty of contributory negligence the evidence must be substantially one way and not such that reasonable minds might differ with respect thereto. Weller v. Railroad, 164 Mo. 180. (3) Although the driver of the vehicle in which the deceased was riding should be held to be guilty of negligence in approaching the crossing in question as he did, his negligence could not be imputed to the deceased, unless said driver was the agent of or under the control of the deceased. Proffit v. Railroad, 91 Mo.App. 369; Dickson v. Railroad, 104 Mo. 491; Beck v. Railroad, 102 Mo. 544; Munger v. Sedalia, 66 Mo.App. 629; Lapsley v. Railroad, 16 L. R. A. 800; Howe v. Railroad, 30 L. R. A. 684.


Page 285

[104 Mo.App. 580] ELLISON, J.

Plaintiff is the widow of G. W. Marsh who was killed by one of defendant's trains in the village of Hume. She recovered judgment for forty-five hundred dollars and defendant appealed to this court.

The deceased with Willis Harrold and two others, all in Harrold's wagon, had driven into the town to do some shopping. In returning, Harrold and one of the others were on the front seat, Harrold driving, while the deceased and the other man were sitting in the rear on the bottom of the wagon bed. The evidence tended to show that defendant's road runs from north to south through the town and that in approaching the track along the street from the direction these parties were travelling neither the track to the south nor trains thereon could be seen, on account of buildings and other obstructions, at but one place between the business portion of the town and a point between six and twenty feet from the track. That point was two blocks away and then the view was of only a small part of the track. The street along which they drove was smooth so that the wagon did not make sufficient noise to prevent them hearing any signal which an approaching train might make. From the point where they...

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