Smith v. Missouri Pac. Ry. Co., 196.

• Decision Date: 29 May 1893
• Docket Number: 196.
• Citation: 56 F. 458
• Parties: SMITH v. MISSOURI PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 458

SMITH v. MISSOURI PAC. RY. CO.

No. 196.

United States Court of Appeals, Eighth Circuit.

May 29, 1893

Albert R. Strother, (Wm. Warner, O. P. Dean, and James Hagerman, on the brief,) for plaintiff in error.

Elijah Robinson and H. S. Priest, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER District Judge, (after stating the case.)

Statement by THAYER, District Judge:

The plaintiff in error brought an action against the defendant in error on the 24th day of May, 1882, in the United States circuit court for the western district of Missouri, to recover damages for the death of her husband, who was killed on the 30th day of November, 1881, in the yards of the defendant in error at Kansas City, Mo., by being run over by a locomotive engine. The petition that was originally filed in the case was framed under the Missouri damage act, (Rev St. Mo. 1889, § 4425,) and alleged, in substance, that the defendant company, on November 30, 1881, had in its employ a locomotive engineer by the name of Murray, who was not a competent, skillful, experienced, and careful engineer, as said company had reason to know, and did know, when it employed him, and that it was guilty of negligence in selecting and appointing such engineer; that said engineer Murray, on the 30th of November, 1881, by reason of his want of skill, experience, and care, ran a switch engine, of which he was then in charge, through the defendant company's yards, at Kansas City, at a dangerous rate of speed, and by so doing ran over and killed the plaintiff's husband, who was a watchman in said yards, and was at the time engaged in the careful discharge of his duties. The petition further averred that at the time of the accident the engine in question was running backward, that the canvas cloth at the rear of the engine was let down, and that the lamps on the engine were not lighted.

The case appears to have been pending on the original petition from May, 1882, until December 11, 1889, when an amended petition, containing two counts, was filed, by leave of court. The first count of the amended petition did not differ materially from the count contained in the original complaint, the substance of which has been stated. But the second count of the amended petition averred, in substance that the plaintiff's husband was a watchman, and had nothing to do with the running of trains; that the defendant had in its employ one Murray, who was then and there engaged in running and managing a switch engine; that Murray and plaintiff's husband were not fellow servants; that on the morning of November 30, 1881, before daylight, by reason of the recklessness and negligence of said Murray in managing said switch engine, he ran the same over plaintiff's husband, while the latter was engaged in the careful discharge of his duties; that he ran said engine backwards, at a dangerous rate of speed, in the nighttime, without having the lamps on the engine lighted, with the canvas let down at the rear end of the cab, and without giving any signal of the approach of the engine, and by so doing came in contact with the deceased.

To the amended petition a demurrer was interposed as to both counts. The circuit court overruled the demurrer to the first count, but sustained it as to the second count, on the ground that the second count was not properly an amendment of the cause of action stated in the original petition, but that it was, in legal effect, a statement of a new and independent cause of action, against which the Missouri statute of limitations had run before the amended petition was filed. Vide Rev. St. Mo. 1889, § 4429. Thereupon the plaintiff voluntarily dismissed the first count of the amended petition, and, declining to plead further, a judgment was entered in favor of the defendant company on the second count, and the plaintiff sued out a writ of error.

Conceding that the second count of the amended petition proceeded upon the theory that the plaintiff might recover by reason of the...