Le May v. Missouri Pac. Ry. Co.

• Decision Date: 29 June 1891
• Citation: 16 S.W. 1049,105 Mo. 361
• Parties: LE MAY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

16 S.W. 1049

105 Mo. 361

LE MAY v.MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 29, 1891.

INJURIES TO PERSON ON RAILROAD TRACK — PLEADING — TRESPASSERS.

1. In a suit for wrongful death a petition is good which alleges that the intestate, "by the carelessness, negligence, and unskillfulness of the defendant railroad company, its officers, agents, servants, and employes, while running, conducting, and managing certain cars, was run over by two cars of said defendant, and which cars were, at the time they ran over the [intestate,] carelessly, negligently, and unskillfully conducted and managed by said defendant, its officers, agents, servants, and employes."

2. Where persons have been accustomed for a long time to use a railway company's track as a tow-path, and the company has never objected, such persons are not trespassers within the meaning of Rev. St. Mo. 1889, § 2611, forbidding persons to use railway tracks as highways.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Action by the widow of Frank Le May to recover $5,000 for the death of her husband.In her petition she charged that her husband was on one of the defendant's railroad tracks by license and permission, and that, while on said track, "by the carelessness, negligence, and unskillfulness of the defendant, its officers, agents, servants, and employes, while running, conducting, and managing certain cars, was run over by two cars of said defendant, and which cars were, at the time they ran over the said Frank Le May, carelessly, negligently, and unskillfully conducted and managed by said defendant, its officers, agents, servants, and employes, and received injuries thereby from which he instantly died."The accident occurred in Kansas City, Mo., on one of the defendant's main tracks, which runs along the bank of the Missouri river.The river, at the point of the accident, runs in an easterly direction.Front street runs east and west along the south bank of the river.Grand avenue, Main, Delaware, and Wyandotte streets begin at Front street, and run north and south.Delaware is the next street west of Main, and Wyandotte is the next street west of Delaware.At the point where the deceased was run over and killed the defendant had double and parallel tracks running east and west along the north side of Front street, and on the south bank of the river; the north track being used by incoming or west-bound trains, and the south track by outgoing or east-bound trains.The double tracks of the defendant were connected between Main and Delaware streets by a switch, and were on a down grade from Main street to the point where Le May was killed.In the afternoon of the 24th day of May, 1886, the defendant, through its agents and employes, brought out two cars from the track known as the "House Track," at Grand avenue, which is the second street east of Main street.At Main street the cars in question were detached, the engine passing over the switch to the outgoing or south track, and the detached cars were allowed to pass down the incoming or north track.The evidence is conflicting as to whether any one was on the cars in question as they passed down the north track; that of the plaintiff proving that they were unattended.The evidence is also conflicting as to the rate of speed the cars in question moved down the track after they were detached; that of the plaintiff tending to prove that they moved at the rate of 15 miles an hour.Le May, at the time of his death, was upon the defendant's incoming or north track, having stepped upon it at the foot of Delaware street, and was engaged in towing a sand-boat up the river to get a load of sand.The undisputed evidence proves that Le May, while thus engaged, was overtaken by the cars in question running down the north track, at a point between Delaware and Wyandotte streets, and run over and killed.The undisputed evidence further proves that Le May and others engaged in like employment had been accustomed, for a long time prior to the accident, to walk upon defendant's north track between Delaware and Wyandotte streets while towing sand-boats up the river, because there was not room or space enough to walk between defendant's north track and the river.There was conflict in the testimony as to how far Le May had walked on the track before he was struck by the cars, some of the testimony being to the effect that he had walked on the track some 60 yards before being struck, and some to the effect that he had just stepped upon the track, and walked some 4 feet, when struck by the cars and killed.

At the close of the testimony the court, at the instance of the plaintiff, gave the following instructions: "(1)The plaintiff, as the widow of Frank Le May, brings this suit to recover $5,000 damages for the death of her husband, which she, in her petition, alleges to have been caused by the carelessness, negligence, and unskillfulness of the defendant, its officers, agents, servants, and employes, while running, conducting, and managing certain cars of the defendant, by negligently, carelessly, and unskillfully running two of said cars over her husband, instantly killing him.The defendant, in its answer, denies the allegations of the petition, and sets up as a defense that the plaintiff's husband received the injuries from which he died by reason of his own negligence directly contributing thereto.The undisputed facts in this case show that the plaintiff's husband was, on or about the 24th day of May, 1886, run over and killed by two of the cars of the defendant, and that at the time he was so run over he was upon the track of defendant on Front street, between Delaware and Wyandotte streets in Kansas City, Mo.(2) There are two main questions to be determined by the jury: First.Was the death of the plaintiff's husband caused by the negligence of the defendant?Second.Did the plaintiff's husband, by his own negligence, directly contribute to the injury?The burden of proof is upon the plaintiff to establish by a fair preponderance of...