Fiedler v. St. Louis, I. M. & S. Ry. Co.

Decision Date22 December 1891
Citation18 S.W. 847,107 Mo. 645
CourtMissouri Supreme Court
PartiesFIEDLER v. ST. LOUIS, I. M. & S. RY. CO.<SMALL><SUP>1</SUP></SMALL>

In an action against a railway company for causing the death of plaintiff's daughter, aged 15 years, it appeared that, although deceased was by statute a trespasser in walking along defendant's tracks, yet many people habitually walked on the tracks at the place of accident. The train was running more than six miles an hour, in violation of a city ordinance, and no bell was sounded. The engineer saw the girl when about 600 feet distant, and blew the whistle when within about 35 feet of her. The evidence was conflicting as to whether the girl, when first seen by him, was walking on the track upon which the train was moving. Held, that a judgment for the plaintiff would not be disturbed.

Appeal from St. Louis circuit court; JACOB KLEIN, Judge.

Action by Conrad Fiedler against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the killing of plaintiff's minor daughter. Plaintiff obtained judgment, and defendant appeals. Affirmed.

H. S. Priest, for appellant. Joseph Jecko and Rassieur & Schnurmacher, for respondent.

GANTT, P. J.

This action was brought by the respondent against the Missouri Pacific Company and the St. Louis, Iron Mountain & Southern Railway Company to recover the statutory penalty of $3,000 for causing the death of his minor daughter, Katherine Margaret by negligently running a train of cars over her on 15th day of September, 1887. Plaintiff dismissed as to the Missouri Pacific before the trial. Plaintiff averred that on 15th September, 1887, while his said daughter was walking along Main street in said city, at a point a short distance below Anna street, the defendant, with gross negligence and carelessness, caused one of its trains, with locomotive attached, to be propelled along and across said Main street in such a manner that with speed it approached along and across said Main street, and struck and killed said Margaret Fiedler without any negligence on her part contributing to said injury; that defendant's employes failed to keep such a lookout as careful management would dictate; that no bell was rung, and no signal or warning was given of the approach of said train; that defendant was running the said train at a rate of speed exceeding six miles an hour, with no bell ringing, in violation of ordinance of the city of St. Louis; that, but for the carelessness in running said train, defendant might have prevented the injury to deceased after it saw the danger to which she was exposed. The answer was a general denial and contributory negligence.

Plaintiff was a peddler, who, at the time of the death of his daughter, was living at Utah street and levee, near the scene of the accident. His daughter, Margaret was about 15 years old; of ordinary size for girls of that age. She was on her way to work in a match factory near Benton street, north of her home. It does not appear how long she had worked in the factory prior to her death. The accident occurred about 6:45 A. M., on the main east track of the defendant's road, from 150 to 250 feet south of the crossing of Anna street, and between that street and the arsenal wall. Anna street runs east and west at right angles with and across the tracks. Other streets abut on the tracks, but none of them cross. The tracks are upon an embankment 8 to 10 feet high, running north and south, and are straight, presenting an open view between Anna street and the arsenal, and beyond, a distance approximating 2,000 feet. There are two tracks. The east track is used by north-bound trains, and the west by south-bound trains. There is a space of six feet between the tracks. The train which struck plaintiff's daughter was the regular north-bound passenger from the south to St. Louis. It was on time. The accident was witnessed by several witnesses. The plaintiff called four, — Gordon, Durand, Wycoff, and Cartner. The three first were standing upon the station platform at Anna street, waiting to take the south-bound train, then about due, for their work. Gordon testified he had just bought a ticket of the agent, and, as he came out of the door, heard the alarm whistles blown by the engine, looked and saw the plaintiff's daughter about 10 feet in front of the train on the east track. Saw it strike her, at a point about 350 feet south of Anna street. The train brought the body on the pilot to the depot, where it dropped off. She was unconscious. He noticed when the train reached the depot "the brakes were applied to the drivers, and the wheels of the cars were dragging." He thought the train was running from 12 to 15 miles an hour. Durand gave it as his opinion that the train was about 20 yards from the girl when the alarm whistle was blown. She did not heed the alarms at all, but kept walking up the track in front of the train. This witness says she was on the east track all the time. The plaintiff, over the objection of the defendant, proved by this witness that there was no other handy way to go down south except on the railroad tracks, unless a person should go round by Third street. Edwin C. Wycoff testified he was at the station that morning. When he first saw the train it was coming out of the arsenal wall. The girl was then going north, on the west track; the train on east track. She left the west track he supposed because the south-bound train would soon be due. At a point about 400...

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