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

Citation2 S.W. 794,90 Mo. 548
PartiesHUCKSHOLD v. ST. LOUIS, I. M. & S. RY. CO.
Decision Date31 January 1887
CourtUnited States State Supreme Court of Missouri

Hess, Klein & Fisse, for respondent. Partis & Pike, for appellant.

NORTON, C. J.

This suit was instituted by plaintiff to recover damages for the alleged killing of his minor son on the crossing of Catalan street, in the city of St. Louis, by the negligence of defendant in running its locomotive at an unlawful rate of speed; in failing to ring the bell of the locomotive at a distance of at least 80 rods from the place where the railroad crosses Catalan street, and keep the same ringing until the locomotive had crossed the street; in running the engine backward in the dark, so that its approach could not be seen, without any head-light or other light to signal or indicate its approach. The answer was a general denial, and set up contributory negligence on the part of defendant.

On the trial plaintiff obtained judgment, from which defendant has appealed, and assigns for error, among others, the action of the court in refusing to sustain a demurrer to the evidence, which necessitates an examination of it.

On the part of plaintiff the evidence tends to show that plaintiff's son, a youth about 17 years old, was, on the eighth of December, 1882, at work on a night-shift at the Vulcan Iron-works in Carondolet, in the city of St. Louis; that, between 5 and 6 o'clock in the morning, he left the works for his home, driving a horse hitched to a new and strong cart, with heavy iron axle, and heavy wide tire; that he left in company with John Senn a fellow-workman, who was also driving a cart; that he stopped at a well about 25 feet from the track, and south-east of Catalan-street crossing, to water his horse, and then drove on, and stopped his horse and cart 10 minutes, and about 10 feet from the track, at the north end of two box cars standing south of Catalan street.

Senn testified that deceased stopped at that place to wait for him; that at the place where deceased stopped his horse, his view of the railroad track south of Catalan street was obstructed by two box cars standing south of said street, and east of the railroad track; that when Senn finished watering his horse, he drove up to deceased, who drove on from where he had stopped, and the cart was struck by defendant's engine at the crossing on Catalan street, breaking the wheel all to pieces, axle tree, and shafts, and killing plaintiff's son instantly. Senn testified that the bell of the engine was not rung till after the accident; that the engine was running backward in a northerly direction; that it was a dark morning; that there was no light on the rear end of the tender; that the head-light was on the south end of the engine, which was south of Catalan-street crossing, and could not be seen; that the engine was running at 25 or 30 miles an hour; that he did not see or hear the approach of the engine till about the time the collision occurred, when he hallooed to deceased, and the cart was struck, and deceased was killed.

Witness Huber, who was also a laborer at the Vulcan Iron-works, testified that he left the works at 20 minutes before six o'clock, and went, on the north side of Catalan street, as far as the railroad track, and saw a cart standing a few feet east of the railroad track; that he saw another cart come up to this one; that he was walking up from the track north-west, and looked round on the track, thinking an engine might come, — the express always came about that time; that, when he looked down, he did not see anything coming, and all at once heard a rattle behind, and saw the cart lying there, and the boy killed; that, after the collision, the engine ran a block, or about 300 feet, northward, before it stopped; that the speed of the engine was about 30 miles an hour; that he saw no light, and heard no bell ring till after the engine passed him.

The plaintiff also put in evidence an ordinance of the city of St. Louis making it unlawful for any locomotive propelled by steam-power to run at a rate of speed exceeding six miles an hour within the limits of the city, and requiring the bell of the engine to be constantly sounded within the city limits.

On the part of defendant both the conductor and engineer testified that the engine was running at only five or six miles an hour, and that the bell of the engine was constantly sounded; that a red light was placed on the north end of the tender, and that the head-light of the engine was burning; that the morning was dark, and the boy and...

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