Porter v. St. Joseph Stockyards Co.

Decision Date30 May 1908
Citation111 S.W. 1136,213 Mo. 372
PartiesPORTER v. ST. JOSEPH STOCKYARDS CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Buchanan County; Henry M. Ramey. Judge.

Action by Amelia Porter against the St. Joseph Stockyards Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos. F. Ryan, for appellant. Brewster, Ferrell & Mayer, for respondent.

GRAVES, J.

Plaintiff is the widow of Cyrus O. Porter, who came to his death by being run over by a car under which he was at work as a car repairer for the Hammond Packing Company. The widow brought this action for the statutory penalty of $5,000, within the period prescribed by statute. Defendant is a corporation, running and operating stockyards in St. Joseph, Mo., in connection with which are several main and a number of switch railroad tracks, over which the defendant, by and through regular switching crews, moves cars from place to place in its yards and to the nearby packing house plants. The Hammond Packing Company, for which deceased was working as a car repairer, had a nearby plant. Among the number of switch tracks upon which cars were placed was one numbered 8. Upon this track were standing several stationary cars. Under one of these cars Porter went, for the purpose of making some repairs. The evidence tends to show that it was the second car. It also appears that there was a rule or custom which required car repairers, before going under a car, to put up a flag between the stationary cars upon the track and the switch leading into such track, so as to notify the switching crew that he was under the car. This rule or custom stands admitted in the record. When such flag was so placed, it was the duty of the switching crew to give notice to the car repairer before moving the cars from the track or placing others thereon. In the petition it is charged that the deceased placed the signal flag in the proper place before going under the car to work, but that defendant, notwithstanding the fact that it was thus notified of the dangerous situation of deceased, carelessly and negligently backed in a string of cars upon such side track, without notice to deceased, and negligently caused the same to violently strike the car under which deceased was working, thereby inflicting upon him injuries, from which he then and there died. The answer is a general denial and a plea of contributory negligence. Upon trial before a jury a verdict for plaintiff in sum of $5,000 was returned, and judgment duly entered. After unsuccessful motion for new trial, defendant brings the case here by appeal. As defendant urges that a demurrer to the evidence should have been sustained, further statement of the evidence will follow at the proper point. This sufficiently states the case.

1. At the close of the evidence the defendant interposed a demurrer to the testimony. The refusal to sustain this demurrer is urged as error upon the part of the trial court. This contention is urged more strongly upon the ground that Porter was actually warned that cars would be pushed in on the track, and incidentally on the ground that no flag of warning was set up by Porter.

(a) This accident occurred very shortly after 12:30 p. m., on May 17, 1905. At 12:30 a whistle was sounded as a signal to the men to return to their work. Two witnesses, Boyer and Teat, testify that they saw Porter, as he started to his work upon a car that was located upon track 8, place a proper signal flag in between the rails of track 8, between the stationary cars thereon and the switch lead, and near to the switch lead. They also testify that they saw a flag lying between tracks 7 and 8 as they returned from the place where Porter was killed. Boyer further testified that he noticed the hole in the ground where the flag had been, and from which it had been knocked by the moving car or cars. These two witnesses, it is true, are flatly contradicted by most, if not all, of the switching crew. This contradiction, even though by...

To continue reading

Request your trial
14 cases
  • Johnson v. Waverly Brick & Coal Co.
    • United States
    • Missouri Supreme Court
    • July 5, 1918
    ... ... App. 556, 148 S. W. 401; Anderson v. Co., 198 Mo. 448, 93 S. W. 304, 113 Am. St. Rep. 748; Porter v. Co., 213 Mo. 372, 111 S. W. 1138; Kettlehake v. Co., 171 Mo. App. 528, 541, 153 S. W. 552; ... ...
  • Lloyd v. Alton Railroad Co.
    • United States
    • Missouri Supreme Court
    • November 1, 1943
    ...v. St. L. Trust Co., 224 Mo. 232, 123 S.W. 835; Williams v. K.C. Elevated R. Co., 149 Mo. App. 489, 131 S.W. 115; Porter v. Stockyards Co., 213 Mo. 372, 111 S.W. 1136; Nixon v. Hannibal, etc., R. Co., 141 Mo. 425, 42 S.W. 942; Dutcher v. Wabash R. Co., 145 S.W. 63, 241 Mo. 137; Owen v. So. ......
  • Johnson v. Waverly Brick & Coal Co.
    • United States
    • Missouri Supreme Court
    • September 16, 1918
    ... ... 556, 148 S.W. 401; Anderson v ... [276 Mo. 51] Ry. Co., 196 Mo. 442; Porter v ... Stock Yards Co., 213 Mo. 372, 111 S.W. 1136; ... Kettlehake v. Car & Foundry Co., 171 ... Railroad, ... 225 Mo. 364; Charlton v. Railroad, 200 Mo. 413; ... Crawford v. Stockyards Co., 215 Mo. 394, 114 S.W ... 1057; Clark v. Railroad, 234 Mo. 396; Clark v ... Iron & ... ...
  • Lloyd v. Alton R. Co.
    • United States
    • Missouri Supreme Court
    • November 1, 1943
    ... ... 835; Williams v. K. C. Elevated R. Co., 149 Mo.App ... 489, 131 S.W. 115; Porter v. Stockyards Co., 213 Mo ... 372, 111 S.W. 1136; Nixon v. Hannibal, etc., R. Co., ... 141 ... ...
  • 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