Marriott v. Missouri Pac. Ry. Co.

Decision Date07 February 1910
Citation126 S.W. 231,142 Mo. App. 199
PartiesMARRIOTT v. MISSOURI PAC. RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Ann Marriott against the Missouri Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Reversed, subject to privilege to remit damages.

Martin L. Clardy and Ben J. Woodson, for appellant. Brewster, Farrell & Mayer, for respondent.

ELLISON, J.

This is an action for personal injury received by plaintiff in a collision between one of defendant's trains, on which she was a passenger in company with her husband, and a freight train belonging to the Chicago, Burlington & Quincy Railroad Company. She recovered judgment in the trial court. The Chicago, Burlington & Quincy Railroad was made a joint defendant, but at the close of the evidence a demurrer in its behalf was sustained. Plaintiff's husband was also injured, and afterwards died, it is claimed, from the effect of the injury, and plaintiff, as his widow, recovered judgment for his death in the sum of $7,000.

The collision occurred at a crossing of tracks in the city of St. Joseph. The position of the various tracks and streets at and near the scene have been particularly and clearly pointed out to us by counsel. It seems that the defendant had backed its train a short distance west onto terminal tracks for the purpose of leaving a sleeping car, and that to do this it was necessary to cross the track of the Chicago, Burlington & Quincy. After detaching the sleeper, defendant's train then moved forward, east, again crossing the other company's track, and in doing so the latter's freight train ran into defendant's rear coach, in which plaintiff and her husband were seated. It appears that a flagman is kept at the crossing, and that he is the agent of both railway companies for the purpose of flagging trains; that it is the duty of each engineer to await a signal from this flagman before moving over the crossing. The engineer of the defendant's train, claiming that he received a signal to cross, and not observing the other train, it being then out of view on account of buildings, attempted to move over. He got over with the engine, when the brakeman gave him a "violent" signal, and the fireman, seeing the other train, called to him. He then pulled the "throttle wide open" in order to clear the crossing before the other got to it; but the rear car did not get over in time, and the result was the collision, which wrecked the passenger coach and injured plaintiff and her husband. But there was other evidence in the case which tended to show the engineer of defendant's train to have been guilty of negligence. There was evidence that no signal was given to him to make the crossing, and that it was his duty to await such signal. The flagman was the agent of both railway companies, and if he, standing at the crossing, did not signal defendant's engineer, the latter was manifestly guilty of negligence; and, since the attempt to cross without a signal was...

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