Alsup v. Henwood

• Decision Date: 15 February 1940
• Docket Number: No. 6109.,6109.
• Citation: 137 S.W.2d 586
• Parties: ALSUP v. HENWOOD.
• Court: Missouri Court of Appeals

137 S.W.2d 586

ALSUP v. HENWOOD.

No. 6109.

Springfield Court of Appeals. Missouri.

February 15, 1940.

Rehearing Denied March 12, 1940.

Appeal from Circuit Court, Stoddard County; James V. Billings, Judge.

"Not to be published in State Reports."

Suit by Ada Alsup, administratrix of the estate of Mary Alsup, deceased, against Berryman Henwood, trustee of the St. Louis & Southwestern Railway Company, a corporation, bankrupt, for death of plaintiff's decedent, who was struck by one of defendant's trains. From judgment for plaintiff, the defendant appeals.

Reversed.

Langdon R. Jones, of Kennett, for appellant.

R. Kip Briney, of Bloomfield, and Lawrence E. Tedrick, of Poplar Bluff, for respondent.

SMITH, Judge.

This is a suit brought by Ada Alsup, administratrix of the estate of Mary Alsup, deceased. The petition alleged that defendant Berryman Henwood is now and was on the 23rd day of July, 1938, the duly and legally appointed trustee of the property of the St. Louis and Southwestern Railway Company, a corporation, now in bankruptcy, and in the process of reorganization in the Federal Court of the Eastern Judicial District of Missouri, and that on said date was in the actual control and management of said property of the St. Louis and Southwestern Railway Company, including a certain line of railroad extending in a notheasterly and southwesterly direction through Stoddard County, Missouri, and a certain steam locomotive engine and train of cars which on said date was being operated over said line of railroad within the County and State, aforesaid.

The petition further alleged that Mary Alsup was single at the date of her injury and death and that because of certain injuries received she died July 27, 1938, leaving several heirs therein named, all over twenty-one years of age, and that Ada Alsup was duly appointed administratrix of the estate of the deceased, and qualified as such.

The petition continued as follows:

"Plaintiff states that on the 23rd day of July, 1938, the deceased, Mary Alsup was walking in an easterly direction along and upon a certain farm-to-market road which runs in an east and west direction and crosses defendant's railroad track at approximately right angles about one mile north of the town of Idalia, Stoddard County, Missouri, and that she was at all the times hereinafter mentioned, exercising ordinary care and caution for her own safety.

"Plaintiff states that when the deceased, Mary Alsup reached the aforesaid crossing where she had a lawful right to be, the defendant by and through its agents, servants and employees, while operating one of defendant's freight trains consisting of a locomotive engine and train of cars in a northerly direction along and upon defendant's railroad track, negligently and carelessly operated said train at a high rate of speed and into and against the plaintiff who was then and there upon said crossing and as a result of the acts of negligence and carelessness on the part of the defendant, its agents, servants and employees as hereinafter specifically set out, plaintiff was injured in such a manner and to such an extent that she died as a result of said injuries on July 27, 1938.

"Plaintiff says that the injuries and subsequent death of the said Mary Alsup were directly caused by the negligent, careless and unlawful acts and omissions of the defendant, its agents, servants and employees then and there operating said locomotive engine and train of cars, who then and there negligently, carelessly and unlawfully failed and neglected to ring the bell on said locomotive engine at a distance of at least 80 rods from the place where said railroad crosses said highway, and to keep same ringing until said engine had crossed over the crossing, or to sound said steam whistle on said engine for a distance of at least 80 rods from said crossing and to sound same at intervals until said engine had crossed over same.

"That the said agents, servants and employees of the defendant, in charge of and operating said locomotive engine and train of cars, negligently and carelessly failed and neglected to use all reasonable means at hand to give timely and sufficient signal or warning to the deceased, Mary Alsup, of the approach of said engine and train at a time when she was approaching a position of imminent peril at said railroad crossing and when she was oblivious to said peril, and after her said position of imminent peril and her obliviousness thereto were known to the defendant, its agents, servants and employees or could have been known to them by the exercise of ordinary care and caution on their part.

"That the agents, servants and employees of the defendant, in charge of and operating defendant's engine and train of cars saw, or by the exercise of ordinary care could have seen the deceased, Mary Alsup and that she was approaching a place of imminent peril and about to step onto the railroad crossing in front of defendant's train, and that she was oblivious to her peril, in time thereafter, to have enabled her by the exercise of ordinary care and with the means and appliances at hand to have sounded a signal or warning, thereby giving the deceased, Mary Alsup, an opportunity to have extricated herself from her perilous position and thus prevented her injury and death.

"That the agents, servants and employees of the defendant, in charge of and operating said locomotive engine and train of cars, negligently and carelessly failed and neglected to use all reasonable means at hand to prevent colliding with the said Mary Alsup on said railroad crossing after her perilous position thereon was discovered by said agents, servants and employees, of said defendant, or after same could have been discovered by them by the exercise of ordinary care on their part, when by the exercise of ordinary care and with the means and appliances at hand they could have readily done so without damage to defendant's train and track and with safety to the persons thereon.

"Plaintiff states that as a direct result of the aforesaid negligent and careless acts and omissions on the part of the defendant acting by and through its agents, servants and employees, as aforesaid, and through no fault or negligence on the part of the deceased, Mary Alsup, defendant's engine and train struck deceased at said crossing with great force and violence and as a result thereof, deceased received numerous injuries from which she died on July 27, 1938, as aforesaid.

"Plaintiff states that as a direct result of the injuries and subsequent death of the said Mary Alsup, she has expended and obligated herself to expend large sums of money for medical and surgical treatment and for funeral expenses.

"Plaintiff states that by reason of the premises she has been damaged in the sum of Ten Thousand ($10,000) Dollars.

"Wherefore, the premises considered, plaintiff prays judgment against the defendant for the sum of Ten Thousand ($10,000) Dollars and for the costs of this suit."

The answer consisted of a general denial, and the following:

"And the defendant further answering herein alleges that at the time and place wherein the said Mrs. Mary Alsup met her death, that the said Mrs. Mary Alsup was guilty of negligence in that she failed to exercise ordinary care and caution for her own safety before proceeding across the railroad track of the defendant and failed to exercise her faculties of sight and hearing which had she exercised either of same would have disclosed to her the approach of defendant's train and would have avoided her subsequent injury and death; and this defendant alleges that the death of Mrs. Mary Alsup was caused and occasioned by her own carelessness and negligence and without any negligence whatsoever on the part of this defendant, but defendant alleges that the injury and death of Mrs. Mary Alsup was caused and occasioned by her own carelessness and negligence and was not due to any carelessness or negligence on the part of this defendant.

"Wherefore, defendant having fully answered, prays to...