Lynch v. Chicago & A. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGantt
Citation106 S.W. 68,208 Mo. 1
Decision Date19 November 1907
PartiesLYNCH v. CHICAGO & A. RY. CO.
106 S.W. 68
208 Mo. 1
LYNCH
v.
CHICAGO & A. RY. CO.
Supreme Court of Missouri, Division No. 2.
November 19, 1907.

1. EVIDENCE—HEARSAY.

Testimony that witness had heard that certain persons were dead was hearsay.

2. MASTER AND SERVANT — INJURY TO EMPLOYÉ— SUFFICIENCY OF EVIDENCE—NEGLIGENCE.

Evidence, in an action for the death of plaintiff's son, an employé, held to warrant a finding that decedent was killed, while on his railroad velocipede, by an engine running backward; that the engineer and fireman saw decedent in his position of peril, and that he was unaware thereof, in ample time to have avoided running him down; and that no effort was made to check the engine's speed.

3. EVIDENCE—PLEADING—ADMISSIBILITY.

The answer of defendant railroad company, wherein it was admitted that decedent was in its employment, and that it was his duty to run a velocipede over its tracks, and which alleged that decedent, while riding, failed to keep a proper lookout for trains, was competent evidence against the railroad company as an admission that decedent was killed while operating his velocipede.

4. MASTER AND SERVANT—INJURY TO SERVANT —SUFFICIENCY OF EVIDENCE—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Evidence, in an action for the death of plaintiff's son, who was run down by an engine while he was riding on a railroad velocipede, held not to show that he was guilty of contributory negligence as a matter of law.

5. SAME—PRECAUTIONS AS TO PERSONS SEEN ON TRACK.

Where an engineer and fireman saw an employé on the track riding on a railroad velocipede, and observed that he was ignorant of the approach of the engine, it was their duty to warn him, and to slow down the engine, and stop, if necessary to save his life, even though he may have been guilty of contributory negligence in running his velocipede as he did.

6. APPEAL—BILL OF EXCEPTIONS—NECESSITY —APPLICATION FOR CHANGE OF VENUE.

Jurisdiction to allow an amendment of the petition is not devested by an application for a change of venue, and hence a bill of exceptions not having been filed in the court from which the change was taken, and in which the amendment was made, to the allowance of the amendment, error, if any, therein, is not available.

7. TRIAL—INSTRUCTIONS—CONSTRUCTION.

A clause of an instruction, in an action for the death of plaintiff's son, who was run down by an engine while he was riding on a railroad velocipede, that the absence of ordinary care by defendant could not be inferred from the fact that defendant did not stop the engine before it struck decedent, if it did strike him, is not fairly susceptible of the construction that the court assumed as a fact that defendant did not stop the engine before it struck decedent, taken in connection with the whole instruction that, though decedent was in a perilous situation, yet, if he knew of the approaching engine, and defendant had good reason to believe, and did believe, that decedent would escape from his

[106 S.W. 69]

perilous position without being struck, then the situation was not the perilous position referred to in another instruction, and in such case the absence of ordinary care could not be inferred from the fact that defendant did not stop the engine before it struck decedent, if it did strike him.

8. APPEAL—REVIEW—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Though, where a witness testified that, when a second train entered a block on which there was already another train, the second train should be kept under control, and the trainmen be ready to stop on short notice, the answer needed no explanation, and the attempt to make it clearer added nothing to it, yet it was without injury to defendant railroad company that a witness was permitted to answer the question: "What position would a train crew take when you say a train is under control?"

9. EVIDENCE—OPINION EVIDENCE—SPEED OF ENGINE—COMPETENCY OF WITNESS.

A witness, whose duties required him to ascertain if trains were on time, and who always kept defendant railroad's time, who had worked alongside the railroad 12 years, and whose work gave him a daily opportunity of observing the speed of trains, who saw the engine which ran down decedent, and had ridden on trains of defendant railroad, was qualified to give an opinion as to the speed of the engine which struck decedent.

10. SAME—COMPETENCY—SPEED OF ENGINE.

The speed of an engine at a point is evidence of its speed a mile or a mile and a quarter therefrom, downgrade, in the absence of any evidence that it slackened its speed.

11. MASTER AND SERVANT — INJURY TO EMPLOYÉ ON TRACK—EVIDENCE.

In an action for the death of plaintiff's son, who was run down by an engine running backward while he was riding on a railroad velocipede, it was not reversible error to permit a witness to testify that, when the engine reached the station beyond the place of accident, there was no person on the rear end of it.

12. EVIDENCE — SUBJECTS OF EXPERT TESTIMONY.

Within what distance a train can be stopped in a given case, with safety to property and the lives of persons thereon, presents a question for expert testimony.

13. APPEAL—REVIEW—HARMLESS ERROR—ADMISSION OF EVIDENCE.

In an action for the death of plaintiff's son, who was run down by an engine while he was riding on a railroad velocipede, it appeared that decedent was on a straight track on a clear morning immediately in front of the engine running backward, that the engineer and fireman had their faces turned in the direction in which they and decedent were moving, and that decedent could have been seen for a half to two-thirds of a mile before the engine ran him down; and there was no evidence that the engineer and fireman made any effort to stop the engine, or were unable to do so in time to avoid running down decedent; nor was there any evidence of the sudden appearance of decedent on the track 300 or 400 feet ahead of the engine, or any evidence of an attempt to warn him. Held, that conceding that a witness, who testified that, under the circumstances set out in a hypothetical question, an engine and tender could be stopped within 200 or 300 feet, was not competent to testify as an expert, yet, under the evidence, his answer was not prejudicial.

14. SAME—PRESENTATION AND RESERVATION OF ERROR—MOTION FOR NEW TRIAL.

A ground of motion for new trial, in an action for the death of plaintiff's son, under Rev. St. 1899, § 2864 [Ann. St. 1906, p. 1637], awarding damages for injuries resulting in death in certain cases, and declaring by whom recoverable, that "the verdict is not supported by the evidence, and, the cause being founded on a special statute, plaintiff did not prove facts sufficient to bring herself and this cause within the purview of such statute," is insufficient to notify the trial court, in compliance with section 640 (page 660), of an objection, subsequently raised on appeal, that plaintiff failed to prove her right of action, because she did not prove that her son left no minor child, him surviving, and insufficient to justify a review of the objection that she had so failed to prove her right of action.

15. DEATH— ACTIONS FOR CAUSING — SUFFICIENCY OF EVIDENCE OF SURVIVORSHIP.

Evidence, in an action under Rev. St. 1899, § 2864 [Ann. St. 1906, p. 1637], awarding damages for injuries resulting in death in certain cases, and declaring by whom recoverable, that decedent was unmarried at the time of his death, and was a minor, in the absence of the slightest suggestion that he had ever been married, or that he left a minor child, him surviving, justified a finding that he had left no minor child him surviving.

Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by Catherine Lynch against the Chicago & Alton Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. O. Gray and Scarritt, Scarritt & Jones, for appellant. P. H. Cullen, Tapley & Fitzgerrell, and Thad. C. Cox, for respondent.

GANTT, J.


This action was instituted by the plaintiff, Mrs. Lynch, to recover damages under section 2864, Rev. St. 1899 [Ann. St. 1906, p. 1637], for the death of her son, John Lynch, which occurred on August 31, 1902. Prior to and at the time of his death John Lynch was in the employ of the defendant company as a "signal man"; that is, it was his duty to inspect and keep in proper order the automatic electric block signals and bells along a certain section of defendant's line in Lafayette county from Higginsville to Alma. The petition alleges that the said John Lynch was killed by the defendant on or about August 31, 1902, at the place and under the circumstances herein stated.

Plaintiff states that her son, John Lynch, was in the employ of the defendant railroad company, and it was his duty to run a velocipede car over the defendant railroad company's track between the stations of Higginsville and Alma; that on or about the 31st day of August, 1902, her said son, in the discharge of his duties as aforesaid, was operating his velocipede car on said tracks, and was running the same east from Higginsville

106 S.W. 70

to Alma; that, while he was so upon said track operating said velocipede car, an engine owned, operated, and controlled by the defendant railway company, its agents and servants, was carelessly and negligently run east over and along said tracks; that the agents and servants of the railway company knew that deceased was upon the track, as aforesaid, and could have known it by the exercise of ordinary care, and carelessly and negligently failed to give any signals of the approach of said engine, and carelessly and negligently failed to stop said engine, but, on the contrary, carelessly and negligently ran the same with great force and speed into, against, and upon the plaintiff's said son and his car. Plaintiff says that the said defendant knew that her said son was upon the track, and knew he was in a position of peril and unaware thereof, for a long time before said engine...

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32 practice notes
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...Stewart v. Gas Co. (Mo.), 241 S.W. 909; Hatchett v. U. Rys. Co. (Mo.), 175 S.W. 878; Burtch v. Wabash, 236 S.W. 338; Lynch v. Railroad, 208 Mo. 1, 21. (5) That the deceased, who, as conductor, had charge of this work train containing cars presently to be set out, was "on duty" when he stepp......
  • Rockenstein v. Rogers, No. 28487.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1930
    ...trial court to admit an abandoned pleading in evidence, for the purpose of showing the admissions therein contained. [Lynch v. Railway Co., 208 Mo. 1, 19, and cases there cited.] The appellant's abstract of the 31 S.W.2d 801 record, filed herein, omits and fails to show the subject-matter, ......
  • McAllister v. Terminal Railway Co., No. 27144.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1930
    ...(Nebr.), 59 N.W. 950; C.B. & Q. Railroad Co. v. Gunderson (Ill.), 51 N.E. 704; Schlerth v. Railroad, 115 Mo. 87; Lynch v. Railroad Co., 208 Mo. 1; Rine v. Railroad Co., 100 Mo. 228. (3) Circumstantial evidence was sufficient to show that the violation of the Federal Act was a proximate caus......
  • Galicich v. Oregon Short Line R. Co., 2080
    • United States
    • United States State Supreme Court of Wyoming
    • February 14, 1939
    ...affirmatively that they saw him or else were not looking. (Ellis v. Met. St. Ry. Co., 234 Mo. 657, 673, 138 S.W. 23; Lynch v. Ry. Co., 208 Mo. 1, 24.) It has been several times ruled by the supreme and appellate courts that testimony of a witness, with normal eyesight, who is looking in the......
  • Request a trial to view additional results
32 cases
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...Stewart v. Gas Co. (Mo.), 241 S.W. 909; Hatchett v. U. Rys. Co. (Mo.), 175 S.W. 878; Burtch v. Wabash, 236 S.W. 338; Lynch v. Railroad, 208 Mo. 1, 21. (5) That the deceased, who, as conductor, had charge of this work train containing cars presently to be set out, was "on duty" when he stepp......
  • Rockenstein v. Rogers, No. 28487.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1930
    ...trial court to admit an abandoned pleading in evidence, for the purpose of showing the admissions therein contained. [Lynch v. Railway Co., 208 Mo. 1, 19, and cases there cited.] The appellant's abstract of the 31 S.W.2d 801 record, filed herein, omits and fails to show the subject-matter, ......
  • McAllister v. Terminal Railway Co., No. 27144.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1930
    ...(Nebr.), 59 N.W. 950; C.B. & Q. Railroad Co. v. Gunderson (Ill.), 51 N.E. 704; Schlerth v. Railroad, 115 Mo. 87; Lynch v. Railroad Co., 208 Mo. 1; Rine v. Railroad Co., 100 Mo. 228. (3) Circumstantial evidence was sufficient to show that the violation of the Federal Act was a proximate caus......
  • Galicich v. Oregon Short Line R. Co., 2080
    • United States
    • United States State Supreme Court of Wyoming
    • February 14, 1939
    ...affirmatively that they saw him or else were not looking. (Ellis v. Met. St. Ry. Co., 234 Mo. 657, 673, 138 S.W. 23; Lynch v. Ry. Co., 208 Mo. 1, 24.) It has been several times ruled by the supreme and appellate courts that testimony of a witness, with normal eyesight, who is looking in the......
  • Request a trial to view additional results

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