Allen v. St. Louis Southwestern Ry. Co.

• Decision Date: 08 May 1915
• Docket Number: No. 1468.,1468.
• Citation: 176 S.W. 297,189 Mo. App. 272
• Parties: ALLEN v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

176 S.W. 297

189 Mo. App. 272

ALLEN v. ST. LOUIS SOUTHWESTERN RY. CO.

No. 1468.

Springfield Court of Appeals, Missouri.

May 8, 1915.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Maud Allen against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

S. H. West, of St. Louis, and Wammack & Welborn, of Bloomfield, for appellant. J. L. Fort and J. W. Farris, both of Bloomfield, and John H. Bradley, of Kennett, for respondent.

ROBERTSON, P.J.

Plaintiff's husband, 24 years of age, when working for an independent contractor, who was constructing a new track within about 10 feet of defendant's old track at a curve on its road between Rockview and Illmo, in Scott county, was run over by defendant's freight train and received injuries resulting in his death. This action was instituted to recover damages therefor, and resulted in a verdict for plaintiff in the sum of $2,000, upon which judgment was entered, and from which the defendant has appealed.

Numerous points are urged here by defendant as grounds for assailing the judgment, but we shall consider only one of them, as that goes to the vitals of plaintiff's case. There is no evidence of negligence on the part of the defendant in that it is not shown how the deceased met his death, and its demurrer to the testimony should have been sustained.

The accident occurred about 2:30 o'clock on Sunday afternoon of June 15, 1913, when defendant's freight train, consisting of about 40 loaded cars, was passing in a northeasterly direction upgrade towards Ill-mo. A brother of the deceased testified that he saw "him go across the track ahead of the train." He said that deceased had a shovel in his hands, and the witness said he thought rock were in it; that they had been working on the old track; that he saw deceased start across the track, upon which the train was coming, with his shovel, but he did not notice whether or not he got across. He was asked if, when he saw him, the train was right on him, but he did not answer the question directly, but simply stated that "the train was coming," and that he did not see him any more until somebody called his attention to the fact that the train had killed him, when he looked and saw the train was passing over him. We cannot gather from the testimony any idea about the length of time that elapsed between the time when the witness saw the deceased crossing the track and when he saw the train passing over him. On cross-examination he testified that when he last saw deceased his situation was such that he had plenty of time to have gotten across the track before the train reached him. Claude Proctor, testified for plaintiff that he saw the deceased crossing the track in front of the train, and that it looked to him that the train was not over 10, 12, or 15 feet from him, and that the deceased seemed to be proceeding with his work in the usual manner, but the witness testified that he looked under the cars and saw him moving around after a third or possibly a half of the train had passed, and that he seemed to be "just walking around."

In behalf of the defendant its fireman and engineer each testified that they did not see the engine strike any one, but the fireman testified that he saw some men standing on the side of the track to which the witness testified deceased was going. The conductor, who was on the engineer's seat in the engine, testified that the engine did not strike deceased. In behalf of defendant the foreman in charge of said work testified that the deceased, a short time before the train came along, gave in his...