Georage v. Missouri Pac. R. Co., No. 14765.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBland
PartiesGEORGE v. MISSOURI PAC. R. CO.
Decision Date21 May 1923
Docket NumberNo. 14765.
251 S.W. 729
213 Mo. App. 668
GEORGE
v.
MISSOURI PAC. R. CO.
No. 14765.
Kansas City Court of Appeals, Missouri.
May 21, 1923.

[251 S.W. 730]

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Action by Helen George (now McBride) against the Missouri Pacific Railroad Company. From judgment for plaintiff, defendant appeals. Reversed.

Hackney & Welch, of Kansas City, for appellant.

James A. Reed and James E. Baylor, both of Kansas City, for respondent.

BLAND, J.


This is an action for damages for the wrongful killing of plaintiff's husband. Plaintiff recovered a verdict and judgment in the sum of $8,000, which was reduced by remittitur to $7,500, and defendant has appealed.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. The facts stated in their most favorable light to plaintiff are as follows: Deceased was killed about 9:15 a. m. on May 24, 1920, while employed as a trackman by the defendant. The accident occurred near the eastern city limits of Kansas City, Mo., in what is called the Blue River yards of the Terminal Railway Company. At the place of the accident there were two main line tracks numbered 2 and 3, running east and west, and a great number of switch tracks on both sides. No. 2 track, the north one, was used by west-bound trains, and No. 3, the south track, by eastbound trains. These two tracks were parallel and about 10 feet apart. Plaintiff was struck and killed by one of defendant's eastbound passenger trains, going at the rate of from 20 to 25 miles per hour, at a point about 1,050 to 1,100 feet west of where the tracks curved to the southeast. There was a straight track for the distance mentioned. At the time deceased was killed he was between and near the south railing of track 2 and about 150 or 200 feet west of a signal tower, or arm, extending over the north rail of track 2 at a height of about 20 feet. About 2,300 feet west of the first signal tower, and about 2,100 feet west of the place of the accident, there was a second signal apparatus where the tracks were crossed by the Kansas City Southern Railroad. The tracks between the two signals continued straight. The second signal arm was about 30 or 35 feet above the ground.

The accident occurred on Monday morning. The Saturday previous deceased had been installing anchors between the ties and rails of track 2. Deceased, together with twelve other trackmen, worked under a foreman by the name of Penson. At 8 o'clock on Monday morning the gang of men assembled at the tool house about a quarter of a mile east of where the accident occurred, and from there went to a place about 60 or 70 yards northeast of the place where deceased was killed, where they went to work unloading ties. The deceased did not go with the other men, but went to work by himself installing the anchors. About 8:15 Penson, having finished his work at the toolhouse, joined the men who were unloading the ties. Deceased continued to work in the vicinity of the place where he was killed. From that time until deceased was killed Penson was engaged in various duties of his own. However, some time before deceased was struck Penson talked to him and at that time deceased was south of track 3 carrying rail anchors in his arm. After the accident Penson found that deceased had distributed anchors at places on the south side of track 2 where he was supposed to put them under the track. The first place an anchor was found was close to where deceased had been working on Saturday. The witness was unable to state how long it was before the accident that he saw deceased at this time. "I couldn't say exactly how long it was. It was quite a bit. It was several minutes." He next saw deceased two or three minutes before the latter was killed. At that time Penson was about 40 yards northwest of deceased, and deceased was walking east between tracks 2 and 3 toward and within 20 or 25 feet of the point where deceased was killed and where an excavation had been made for the purpose of inserting an anchor between the rail and the tie. At this time deceased was carrying a pick and a maul, and he turned and looked at Penson. Person saw deceased no more until he saw him in the air after he was struck by the train. Deceased's pick and maul were found between tracks 2 and 3 near the excavation under the railing of track 2. Penson was the only witness to the occurrence introduced by plaintiff.

Defendant introduced witness Hankenberry, who testified that at the time in question he was employed as an engineer by the Kansas City Terminal Railway; that he was on the south side of his engine cab on the second track north of the track on which the accident occurred; that he saw deceased shortly before he was struck. At that time deceased was a little south of track 3. He saw deceased there pick up some tools, the character of which' witness did not notice, and walk in a northeast direction across track 3 and on to the first, or south, rail Of

251 S.W. 731

track 2. The witness' engine was moving and at this time some box cars interfered with his view and prevented his seeing plaintiff longer. The last time the witness saw deceased was only "a few seconds" before he was struck. A Santa Fe train going east or track 3 was passing, or had' already passed

There was other evidence that the Santa Fé train was 10 or 14 coaches in length and was going at the"rate of 15 miles per hour. The length of each of the coaches on both trains was about 40 feet. The evidence shows that about one-half of the Santa Fé train had passed deceased at the time he was killed. It had been raining, and the atmosphere was heavy. There was a wind blowing from the south at about 4 miles per hour. The tracks were level, but in a low place and the wind was coming from the edge of a bluff, blowing the smoke of the Santa Fé engine downward, causing it to trail along the side of the Santa Ed train between tracks 2 and 3. Each of the engines extended about 20 inches into the space between the tracks and this narrowed the space to 6 feet 6...

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9 practice notes
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...evidence as to what actually occurred. Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 Sup. Ct. 395; George v. Railroad Co., 213 Mo. App. 668, 251 S.W. 729; Rashall v. Railroad Co., 249 Mo. 522, 155 S.W. 426; Wabash Railroad Co. v. Detar, 141 Fed. 932; McAllister v. Railroad Co.,......
  • Goldbaum v. Mulligan Print. & Pub. Co., No. 37,113.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1941
    ...Co., 207 Mo. 392, 105 S.W. 1061; Rashall v. St. Louis, I.M. & S. Ry. Co., 249 Mo. 522, 155 S.W. 426; George v. Mo. Pac. Ry. Co., 213 Mo. App. 668, 251 S.W. 729; Raw v. Maddox, 93 S.W. (2d) 282; Stines v. Dillman, 4 S.W. (2d) 477. (b) The courts of Michigan recognize the well-settled gen......
  • Fryer v. St. Louis-S.F. Railway Co., No. 30892.
    • United States
    • United States State Supreme Court of Missouri
    • August 24, 1933
    ...Mockowik v. Railroad Co., 196 Mo. 571; Burge v. Railroad Co., 244 Mo. 94; Dyrez v. Railroad Co., 238 Mo. 33; George v. Railroad Co., 213 Mo. App. 668, 251 S.W. 732. (2) Fryer's death was not proven to have been caused by the accident received in which his ankle was injured, but on the contr......
  • Rainwater v. Wallace, No. 20150.
    • United States
    • Court of Appeal of Missouri (US)
    • March 1, 1943
    ...and recovery on proof of cause not plead, but to a vital question as to inferences. In the case of George v. Missouri Pacific R. Co., 213 Mo.App. 668, also reported in 251 S.W. 729, 732, Judge Bland, of the Kansas City Court of Appeals, in an opinion concurred in by other judges, says: &quo......
  • Request a trial to view additional results
22 cases
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...evidence as to what actually occurred. Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 Sup. Ct. 395; George v. Railroad Co., 213 Mo. App. 668, 251 S.W. 729; Rashall v. Railroad Co., 249 Mo. 522, 155 S.W. 426; Wabash Railroad Co. v. Detar, 141 Fed. 932; McAllister v. Railroad Co.,......
  • Goldbaum v. Mulligan Print. & Pub. Co., No. 37,113.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1941
    ...Transit Co., 207 Mo. 392, 105 S.W. 1061; Rashall v. St. Louis, I.M. & S. Ry. Co., 249 Mo. 522, 155 S.W. 426; George v. Mo. Pac. Ry. Co., 213 Mo. App. 668, 251 S.W. 729; Raw v. Maddox, 93 S.W. (2d) 282; Stines v. Dillman, 4 S.W. (2d) 477. (b) The courts of Michigan recognize the well-settled......
  • Bethlehem Steel Co. v. National Labor R. Board, No. 7503
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 12, 1941
    ...yield to credible evidence of the actual occurrence.' And, as stated by the court in George v. Missouri Pac. R. Co. . . . 1923, 213 Mo.App. 668, 674, 251 S.W. 729, 732, `It is well settled that where plaintiff's case is based upon an inference or inferences, that the case must fail upon pro......
  • United States v. United States Gypsum Co., Civil No. 8017.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 15, 1946
    ...yield to credible evidence of the actual occurrence.' And, as stated by the court in George v. Missouri Pac. R. Co. . . . 1923, 213 Mo.App. 668, 674, 251 S.W. 729, 732, `It is well settled that where plaintiff's case is based upon an inference or inferences, . . . the case must fail upon pr......
  • Request a trial to view additional results

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