McGrath v. St. Louis Transit Co.

Decision Date30 May 1906
Citation94 S.W. 872,197 Mo. 97
PartiesMcGRATH v. ST. LOUIS TRANSIT CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Maria McGrath against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle & Priest, Geo. W. Easley, and Edw. T. Miller, for appellant. A. R. Taylor, for respondent.

GRAVES, J.

Maria McGrath brings this action to recover $5,000 for the death of her husband, James McGrath. Defendant is an incorporated street railway company in the city of St. Louis. McGrath was, on the day of the accident, and for some time prior thereto, employed by defendant as a track repairer or laborer upon its tracks. The petition states two grounds of negligence, as follows: "That on the 17th day of October, 1901, the plaintiff's husband was in the service of the defendant, repairing its tracks, and making alterations and improvements therein, at or near the intersection of Eighteenth street and Clark avenue in the city of St. Louis, when defendant's motorman and conductor in charge of its east-bound car, carelessly and negligently, and without giving any warning by bell or otherwise of the approach of said car, and without using any care to control or stop said car, caused and suffered said car to run upon and against said James McGrath and to so crush and injure him that he died from said injuries on the 17th day of October, 1901. And for another assignment of negligence the plaintiff avers that, whilst the plaintiff was so at work for the defendant, he was necessarily absorbed in his work, and was unable to keep a continuous watch for cars; and that it was the duty of defendant by its agents and foreman having charge of said work, to give said James McGrath timely warning of the danger of an approaching car. Yet the plaintiff avers that the defendant and its said foreman did utterly fail and neglect to give said James McGrath timely or other warning of the approach of said car and thereby directly contributed to cause the injury and death of said James McGrath." It might be well to state that the second ground of negligence was abandoned by plaintiff both in the proof and in the instructions by her asked in the course of the trial. The answer is first, a general denial; second, an allegation that the deceased was warned by one or more of his fellow workmen, but negligently failed to heed such warning and remained upon or near the track, and was thus killed by his own negligence or want of care; and third, the usual plea of contributory negligence, leaving out the allegation of warning given by his fellow workmen. The reply put in issue all new matter in the answer.

Briefly summarized, the evidence in this case shows the following facts: Defendant was operating a street railway in the city of St. Louis. On Eighteenth street it had a double track running north and south. North-bound cars used the east track and south-bound cars the west track. At Clark avenue, which crossed Eighteenth street at right angles, was a switch, by which certain cars left Eighteenth street to go upon the track on Clark avenue. The deceased and one Thomas Barry were at work just west of Clark avenue on Eighteenth street. Other employés were at work on Clark avenue close to this switch. Barry and deceased were engaged in pulling spikes. Barry had a claw bar and deceased a hammer. Deceased would assist in setting the claw bar and then when the spike was prized up to a certain distance, would put his hammer under the claw bar, thus forming a fulcrum, by which the spike was prized out of the tie into which it had been driven. These parties, with others, had been at work in and about this point since 7 o'clock of the evening before the accident and until 12 o'clock that night, when they took lunch. Just after lunch these two laborers were at the place above stated and in the act of drawing a spike. Barry was using the claw bar and the deceased the hammer. The spike was being drawn at the time of the accident, and was one on the east rail of the east track, and Barry had his claw bar across the track. As best as can be gathered from the evidence he must have been facing east or northeast. After he got his claw bar on the spike, and before it was necessary to use the nammer, he saw the car coming and tried to detach his claw bar from the spike, but finding it "too fast" on the spike he cried out to McGrath, "Let it go," and he himself tried to get out of the way, but was struck by the car as was also McGrath. McGrath, according to this witness, was doing nothing, and at the time was facing south towards the coming car, the car which struck both of them. The witness was closer to the approaching car than was McGrath by 2 or 3 feet. One Patrick McGuire, who was working there that night, says that he had charge of a pole upon which were attached ten incandescent lights. This pole by means of a hook placed over a wire, formed a circuit and furnished light by which the men worked. The pole handled by this witness was about 10 feet north from where deceased and Barry were working. This witness first saw the car which struck and killed deceased when it was coming across the bridge, which was south of where the two men were at work. He says, "I saw it a long way off," and further says that when the car was within 15 feet of the men, "I shouted to the men, `Look out there,' and they didn't seem to take any heed of my warning." This witness admits that, in testifying before the coroner, he stated that he gave this warning when the car was 40 feet away, and that, it being fresh in his memory, the statement before the coroner was most likely correct. The witness also states that he was 10 feet from the men when he gave this warning; that had they acted promply they could have gotten out of the way. McGuire says that deceased was "facing in a northwesterly direction pulling spikes," but also admits that Barry had the claw bar and deceased the hammer. He says deceased was struck in the side of the head, and says he was stooping a little at the time; that the car ran about a car length after striking deceased before it stopped. C. R. Ferguson, another witness, says that he was a laborer there on the night of October 16, 1901, when deceased was killed; that he was 60 to 90 feet away on Clark avenue; that he did not see the car strike deceased; that the first he saw of deceased, "he [deceased] was kind of doubled up and was rolling;" that the cars had been passing, as he presumed, about on their schedule time; that men working for the company expected these cars to pass in that way. He also says that, prior to the accident, the lights on the poles were being taken down. The evidence further shows that the car in question was lighted upon the inside in the usual manner and had the headlight burning; and that there was no obstruction between deceased and the approaching car. There is no direct evidence as to the speed of the car, nor is there any evidence as to within what distance a car could be stopped when going at any given rate of speed. There is no evidence showing whether the motorman did or did not attempt to slow up his car before striking the plaintiff. This, in substance, is the evidence for the plaintiff.

At the close of the plaintiff's case defendant offered an instruction in the nature of a demurrer to the evidence, which being overruled by the court, appellant declined to introduce any testimony. The case was thereupon submitted to the jury, which returned a verdict for $5,000 against defendant. Motion for new trial and in...

To continue reading

Request your trial
258 cases
  • Welch v. Thompson
    • United States
    • Missouri Supreme Court
    • March 8, 1948
    ... ... [210 S.W.2d 81] ...         Appeal from Circuit Court of City of St. Louis. — Hon. William B. Flynn, Judge ...         AFFIRMED ...          Thomas ... (2d) 803. (2) The petition does not state a claim under the res ipsa loquitur doctrine. McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Sleater v. John R. Thompson Co., 173 S.W. (2d) ... ...
  • Cantley v. M.-K.-T. Railroad Co.
    • United States
    • Missouri Supreme Court
    • September 5, 1944
    ... ... Williams v. St. Louis-S.F. Ry. Co., 85 S.W. (2d) 624; Grindstaff v. J. Goldberg & Sons Structural Steel Co., 40 S.W. (2d) ... 553; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13; Kidd v. Coahuila Lead & Zinc Co., 204 S.W. 284; McGrath v. St. Louis Transit Co., 197 Mo. 97. (10) The court erred in giving plaintiff's Instruction A, for ... ...
  • Charlton v. Lovelace
    • United States
    • Missouri Supreme Court
    • July 6, 1943
    ... ... 123; Price v. Metropolitan Street Ry. Co., 119 S.W. 932, 220 Mo. 435; Norris v. St. Louis, I.M. & S. Ry. Co., 144 S.W. 783, 239 Mo. 695; Partello v. Mo. Pac. Ry. Co., 145 S.W. 55, 240 Mo ... 348; Logan v. Metropolitan Street Ry. Co., 82 S.W. 126, 183 Mo. 582; O'Gara v. St. Louis Transit Co., 103 S.W. 54, 204 Mo. 724; McDonald v. Metropolitan Street Ry. Co., 118 S.W. 79, 219 Mo. 468; ... Potts, 88 Md. 52, 41 L.R.A. 478; Pointer v. Mountain Ry. Construction Co., 189 S.W. 805; McGrath v. St. Louis Transit Co., 197 Mo. 97. (2) The trial court properly sustained respondents' demurrer ... ...
  • Gordon v. Packing Co.
    • United States
    • Missouri Supreme Court
    • June 24, 1931
    ... ... [40 S.W.2d 694] ...         Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge ...         AFFIRMED ( upon condition ) ... Hamilton v. Railroad, 123 Mo. App. 619; Removich v. Construction Co., 264 Mo. 43; McGrath v. Transit Co., 197 Mo. 97; Sabol v. Cooperage Co., 313 Mo. 540; Glasscock v. Dry Goods Co., 106 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT