79 S.W. 938 (Mo. 1904), Montgomery v. Missouri Pacific Ry. Co.

Citation:79 S.W. 938, 181 Mo. 508
Opinion Judge:GANTT, P. J.
Attorney:R. T. Railey for appellant. H. A. Jones and A. A. Whitsitt for respondent.
Judge Panel:GANTT, P. J. Burgess and Fox, JJ., concur.
Case Date:May 10, 1904
Court:Supreme Court of Missouri

Page 938

79 S.W. 938 (Mo. 1904)

181 Mo. 508




Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Cass Circuit Court. -- Hon. W. W. Graves, Special Judge.


R. T. Railey for appellant.

H. A. Jones and A. A. Whitsitt for respondent.

GANTT, P. J. Burgess and Fox, JJ., concur.


Page 939

[181 Mo. 509] GANTT, P. J.

This is an appeal from the judgment of the circuit court of Cass county. The action is for damages for personal injuries inflicted by the alleged negligence of defendant, its agents and servants, in backing a freight train over a buggy in which plaintiff, her sister and brother were riding, on their return home from church on the night of October 29, 1899. The injury occurred on a public crossing of Wyoming street in the city of Pleasant Hill, in Cass county, Missouri. The facts of the case are, in all material respects, the same as those which appear in the case of Bertha Montgomery v. Missouri Pacific Railway Company, decided on this day, and hence reference only need be made to that case for a statement of the facts. The instructions of the court were the same as in the Bertha Montgomery case, save that in this case the court, of its own motion, gave one numbered 4, in the words following:

"The court instructs the jury that the negligence mentioned in instruction one, in so far as negligence is mentioned therein, on the part of the defendant in this case, refers simply to such negligent acts as the defendant is charged to have been guilty of in this case. And, you are further instructed that in this case the defendant is charged with being negligent in the following manner:

"1. Defendant is charged with having backed its engine and train of cars across the Wyoming street crossing at the time of the alleged accident without giving [181 Mo. 510] any warning or signal before reaching said crossing.

"2. The defendant is charged with having negligently backed said train of cars and engine without having any light on said car or brakeman or other person stationed on said car or at the end of said car or cars, to warn persons at the crossing of the approach of said car or cars, and that no warning signal or notice of any kind was given of the approach of said car or train of cars as it was being backed across said crossing at Wyoming street.

"3. It is charged as an act of negligence that the defendant had been in the habit of keeping a flagman at said Wyoming street crossing for the purpose of apprising persons about to cross said crossing of danger, if any, in so doing, and that upon this occasion the customary flagman was absent from his...

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