Schlereth v. Missouri Pac. Ry. Co.
Decision Date | 20 December 1888 |
Citation | 10 S.W. 66,96 Mo. 509 |
Parties | SCHLERETH v. MISSOURI PAC. RY. CO. |
Court | Missouri 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) 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.
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: ...
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