Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.
Action by Addie Neas against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.
Plaintiff commenced her action in Audrain county circuit court to recover $10,000 damages claimed by reason of the death of her husband, July 14, 1907.
The petition on which the case was tried, after averments of incorporation of defendant, and that it was operating its road on July 14, 1907, from Old Monroe to Mexico, Mo., passing near the towns of Martinsburg and Benton City, Mo., and that Levi S. Neas, her husband, was on that date "by the defendant carelessly and negligently killed" avers "that her said husband was in the employ of the defendant as section foreman on the section lying near the towns of Benton City and Martinsburg in Audrain county, and as such it was his duty to do and perform such labor on defendant's track as was required of him, or as the duties of his position called upon him to perform. Plaintiff says that it was a part of the duty of the defendant to carry and transport certain hands employed by the defendant, and certain tools used and owned by the defendant, from its station at Benton City to its station at Martinsburg, by means of a hand car operated over the tracks of said defendant; and that on the 14th day of July, 1907, in obedience to the order and direction of the defendant, he took charge of a certain hand car at or near Benton City, and carried to Martinsburg aforesaid a number of hands employed by the defendant, and a number of tools used by the defendant, and delivered said hands and tools at the station at Martinsburg; and that his residence was at Benton City and the hand car which he was using was required to be kept at Benton City, and it became, and was, his duty to run said hand car back from Martinsburg to Benton City after delivering the said hands and tools aforesaid; and that while he was returning on the tracks of said defendant, propelling the hand car aforesaid, the hand car and himself were struck by an engine and train operated and controlled by the defendant
running west on the tracks aforesaid. Plaintiff further says that the employés of the defendant railway company saw and knew, or by the exercise of due diligence might have seen and known, that her said husband was propelling a hand car on the tracks in a perilous position, and unaware thereof, and unable to escape from impending danger; that the said defendant and the said servants negligently failed to sound the usual and ordinary signals of danger in time to avert the injury, or at any other time, and negligently and carelessly failed and neglected to stop or slacken the speed of said train in time to avert an injury or collision, when, as a matter of fact, said train might, by the exercise of due care, have been stopped, or the speed thereof slackened, in time to avert the collision and injury, and if said signals had been given, either before or after her said husband's peril was or might have been discovered, as they might and should have been given, had the defendant exercised due care, said collision and injury would thus have been averted. And plaintiff further says that when said engine struck said hand car, the said hand car was running west, and the said engine was also running west, and when the said engine struck the hand car, it threw her said husband down upon the floor of said hand car, and hurt, but did not fatally injure, him, but the said servants in charge of said train and engine, though they knew, or might by the exercise of ordinary care have known, that they had struck said hand car and thrown her said husband down thereon, negligently and carelessly failed to stop said train, but negligently and carelessly continued to run said train at a rapid rate of speed for a mile or more, pushing said hand car in front thereof, and causing the handle bars and other appliances of said hand car to work very rapidly. And plaintiff alleges that said handle bars were worked very rapidly, and caused to strike her said husband, who was then lying upon the floor of said hand car, and said handle bars and appliances beat and injured him to such an extent as to cause his death, though he was not dead at the time the train was stopped but lived several hours thereafter. And plaintiff alleges that he died as the joint result of injuries received both after the engine collided with the hand car, and which were inflicted upon him while said hand car was being pushed along the track by said engine; and that if the agents and servants of defendant had stopped their train even when they struck the hand car, his death would not have resulted."
The answer, after a general denial, proceeds: "Defendant, further answering, says that plaintiff's decedent, Levi S. Neas, was, at the time of his alleged injury, in the employ of defendant as a section foreman, but at said time was a trespasser on the railroad track of the defendant; that the time and hour of his injury, if he was injured, was about 2:52 o'clock a. m., and that said Levi S. Neas had no right or duty on the defendant's track in the nighttime; that he was not in the service of the defendant or doing anything in connection with, or relating to, the business of the defendant at the time of his alleged injury; that his day's work began about 7 a. m., and ended at 6 p. m.; that he quit work at 6 p. m. the afternoon preceding his injury; that his duty did not require him to be on defendant's track; that neither the defendant, nor any of its servants, knew, or had any reason to know or anticipate or expect, that said Levi S. Neas was on its track at the time of his alleged injury. Defendant, further answering, says that plaintiff's decedent, Levi S. Neas, was injured as a direct result of his own negligence and carelessness contributing thereto, in that he negligently, and without authority from defendant, expressed or implied, and while under the influence of intoxicating liquors, undertook late in the nighttime (when and where he was not on duty, and at an hour when his duty did not require him to be on the tracks of the defendant), when it was very dark, to run and have a hand car on the main track of the defendant's road where said road had only a single track, without any assistance and protection against defendant's trains which he knew might at any time pass over and along the track where he was, and on which he had said hand car; that, without keeping a lookout for said trains on defendant's said track, and knowing the trains of the defendant were liable to pass at any time over the track when and where deceased was, with said hand car, at the time of the alleged injury, and he especially knew that defendant's train No. 25 was due to pass the point where it is alleged deceased was injured at the time of his alleged injury; that deceased failed to look out or listen for, or get out of the way of, said train; that said Levi S. Neas knew that the agents and servants of the defendant in charge of its trains, passing over its track at the hour of the alleged injury to said Levi S. Neas, did not know he was on said track with a hand car, and had no reason to expect or anticipate the presence of persons and hand cars upon said track at the then hour of the night; that the defendant, long before the time of the alleged injury, made and promulgated rules for section men, which said rules at the time were, and had been for a long time prior to the alleged injury, in force, and which said rules forbade section foremen to allow hand cars to be used on defendant's said track, except when doing the work and service of the defendant, and forbade section foremen to have a hand car on the main track at night, except with a white light displayed on the front, and a red light in the rear of, said hand car, and defenda...
