Schlereth v. Missouri Pac. Ry. Co.

Decision Date20 December 1888
Citation10 S.W. 66,96 Mo. 509
PartiesSCHLERETH v. MISSOURI PAC. RY. CO.
CourtMissouri Supreme Court

Appeal from St. Louis circuit court; WILLIAM H. HOMER, Judge.

Action by Anna M. Schlereth, widow of Anton Schlereth, deceased, against the Missouri Pacific Railway Company for negligently causing her husband's death. Deceased was killed by being struck by defendant's train while walking on the track. The defense was a general denial. At the close of plaintiff's testimony defendant asked the following instruction: "The court instructs the jury that under the evidence and pleadings in this case the plaintiff is not entitled to recover;" which the court refused to give, and defendant excepted. The defendant offered no evidence. Plaintiff then asked, and the court gave to the jury, the following instructions, viz.: (1) "The jury are instructed that if they believe from the evidence that on or about the 26th day of November, 1884, the plaintiff and one Anton Schlereth were husband and wife, and that said Anton died on or about the day aforesaid and left the plaintiff surviving him as his widow, and that on or about said day the defendant, by its officers, agents, servants, employes, was running, conducting, or managing one of its locomotives, and that said locomotive was then running on, along, and over defendant's line of railway within the limits of the city of St. Louis, and that said locomotive was then run against or upon the body of said Anton, and that said Anton was then struck with said locomotive and injured, and that said Anton died of such injury on or about said day, and that such striking of said Anton and injury to him resulted from, or was occasioned by, the negligence of any of said officers, agents, servants, or employes of defendant while running, conducting, or managing said locomotive at or prior to the time said locomotive was run against or upon the body of said Anton, they will find for the plaintiff. (2) The jury are further instructed that if they find for the plaintiff they will assess her damages at the sum of five thousand dollars." To the giving of each of which said instructions the defendant objected and excepted. The defendant then prayed the court to instruct the jury as follows: "The uncontradicted evidence in this case showing that the deceased husband of plaintiff was an employe of defendant at the time of his death, to-wit, a section hand or track repairer, and there being no evidence showing or tending to show the relation that said deceased bore to the servants or employes of defendant in charge of the engine that ran over the said deceased, the presumption of law is that said deceased and the said employes in charge of said engine were fellow-servants, and there can be no recovery in this case." Which instruction the court refused, and defendant excepted. The jury thereupon found a verdict for plaintiff in the sum of $5,000, which defendant moved to set aside, and grant a new trial. A new trial having been refused, defendant appeals.

Bennett Pike and Thos. J. Portis, for appellant. E. P. Johnson, for respondent.

SHERWOOD, J.

Action for damages, brought by plaintiff against defendant for causing the death of her husband, Anton Schlereth, who was killed by one of defendant's trains near Tower Grove station, in the city of St. Louis, while he was in defendant's employ as track repairer. Omitting formal parts, the petition is the following: "That on said day the defendant, by its officers, agents, servants, and employes, was running, conducting, and managing one of its said locomotives, which was then and there being propelled by steam-power, on, along, and over its said line of railway within the limits of the city of St. Louis, and ran the said locomotive against and upon the body of said Anton, whereby said Anton was violently struck with said locomotive, and thrown down and injured, of which injury the said Anton died on said day. That said injury to said Anton resulted from, and was occasioned by, the negligence and...

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