King v. Wabash R. Co.
Citation | 211 Mo. 1,109 S.W. 671 |
Parties | KING v. WABASH R. CO. |
Decision Date | 01 April 1908 |
Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Daviess County; J. W. Alexander, Judge.
Action for wrongful death by Cora A. King against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
J. L. Minnis and Frank P. Sebree, for appellant. Henry L. Eads, E. M. Harber, and A. G. Knight, for respondent.
Plaintiff for a short while— seven months—was the widow of one S. J. R. Turner, who was killed by one of the defendant's engines. After the institution of this suit, but prior to the trial, she married one King. She had judgment below for the statutory penalty of $5,000, and defendant appealed. The death of said Turner occurred within the corporate limits of Pattonsburg, Mo. Plaintiff pleads that there was, at the point where the accident occurred, a continuous user of defendant's right of way and tracks by pedestrians, of which said user the defendant had full knowledge, and this the evidence tended to prove. The petition further pleads an ordinance of the city to this effect.
It was shown that the city of Elm Flat by proper steps became Pattonsburg. It was claimed that deceased met his death by a backing engine which was run at a rate of speed in excess of the speed limit, and said train was run without ringing the bell and without being manned as required by the ordinance, and without having a man stationed on the car "fartherest from the engine to give danger signals." The accident occurred about 3 o'clock in the afternoon. Deceased who lived north and east of the city was coming to town to make some purchases, among other things, some coal oil. For this oil he had a half gallon bottle which he was carrying in his hand. We mention this now for it becomes material later. In Pattonsburg, the main track of defendant's railway runs east and west. There were two sides or switch tracks, one to the north and one to the south of this main track and parallel therewith. The train in question had arrived from the west. On the north switch track were the stock yards or stock pens. The switch stand or connection of this south switch track with the main track was some 500 feet east of the depot, and that of the north switch track some 450 feet east of the depot which would make the connection of the north switch track with the main line some 50 feet west of the connection of the south switch track with the main line. Such was the situation to the east of the depot, and this is the only situation material to the issues of this case. It was in this vicinity that the evidence tended to show a continuous user over and across the tracks of defendant, by pedestrians. The main portion of the town was to the south of these tracks, but there were some residences on the north side thereof and those residents as well as people from the county continuously crossed these tracks. At one of the footpaths across them they had even constructed and maintained a footbridge across the barrow pit. When this freight train came in from the west, the engine was cut loose from the train, and was run down to the east of the switch stand for the north switch track for the purpose of backing in upon this north track to get a car at the stock yards, which yards were to the west of and near the depot. Whilst this engine was standing there, with the switchman at the switch stand, the deceased came up and passed along the south side of the engine, and passing in front or to the west of the tender went on across the tracks north. As he did so the switchman called to him to look out for the engine. The train crew claimed to have seen him no more. There were two eyewitnesses to the accident; that is, there were but two who saw the engine strike deceased. Their exact testimony becomes important.
Mrs. Phœbe Jane Miller, who lived in one of the houses to the north of the railroad tracks, and who observed deceased as he passed by the tender of the engine, and also observed the brakeman setting the switch, said:
Powell Royston, another witness, among other things said: ...
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