McClary v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 16 March 1891 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | McCLARY v. CHICAGO, M. & ST. P. RY. CO. |
This was an action by plaintiff for the killing of her husband Frank McClary, on March 12, 1889, by a switch-engine of defendant. The accident occurred at Twentieth and Harrison streets, in Kansas City, Mo. The trains of defendant used the tracks of the Kansas City Belt Line, which were laid on Twentieth street. There were two tracks running east and west. The distance between the two tracks was nine feet. About the time of the accident a passenger train of the defendant was going east on the south track, and a switch-engine was backing west on the north track. The switch-engine struck and killed McClary. There was evidence tending to show that the switch-engine was running faster than authorized by ordinance; that deceased was going south on Harrison street; that he walked across the north track and was about stepping on the south track, when he glanced up and saw the passenger train, consisting of three or four cars, within a very few feet of him; that to get out of the way of that train he stepped backward, never looking eastward, till he reached the north track, and stood on one of the rails thereof. Just as the rear end of the passenger coach got by him, the switch-engine going east struck him causing his death. The defendant demurred to the evidence.
Hollis & Latshaw, for plaintiff.
Pratt Ferry & Hagerman, for defendant.
CALDWELL J., (orally, after stating the facts as above.)
This in my opinion, is what would be called a simultaneous transaction. The deceased for the moment seems to have been utterly absent-minded. He went upon those railroad tracks, not looking to the right or to the left, at a time when there were two trains approaching. It is a case that is remarkable. He proceeded to cross one track onto the second track, and had just reached that, when he was in the attitude of being run down by that train, and barely discovered it in time to escape being killed there. He must have been somewhat agitated and confused by the great peril which he had just escaped. All plaintiff's witnesses have testified that he had walked forward and then backward onto the other track, and I think it is perfectly obvious, taking this testimony all into consideration, that the man traversed that space of nine feet between the two tracks, and had just reached the other track,...
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