Soeder v. St. Louis, I. M. & S. Ry. Co.

Citation100 Mo. 673,13 S.W. 714
PartiesSOEDER v. ST. LOUIS, I. M. & S. RY. CO.
Decision Date19 May 1890
CourtUnited States State Supreme Court of Missouri

1. In an action against a railroad company for the death of a brakeman it was shown that deceased was engaged at night in switching cars on a track where there was a rail so worn as to be an inch and a half lower than the next one at the joint, so that a car passing over the joint would be jarred, and that deceased fell from the car on which he was riding, striking the ground at a point consistent with the theory that he was thrown off by the jar in passing over the joint, and that he was dragged some distance, and killed, though nobody saw the accident. Held, that the evidence was sufficient to take the case to the jury.

2. It is not error to allow plaintiff, the widow of deceased, to testify as to the number of her infant children, as deceased was bound for their support, and his death cast the burden on her.

3. It is not reversible error to allow plaintiff to testify that she had an infant child by a former marriage, where the verdict was for $3,500, as such evidence does not appear to have influenced the amount of damages.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

T. J. Portis and Bennett Pike, for appellant. A. R. Taylor, for respondent.

BRACE, J.

This is an action by the widow of William Soeder for damages for the death of her husband, alleged to have been caused by the negligence of the defendant, in whose employ the said Soeder was at the time of his death, engaged in the discharge of his duties as a brakeman. Three grounds of recovery are stated in the petition: First, that the accident was caused by the failure of defendant to have a sufficient number of men to manage and control the train; second, by reason of a defective brake upon the cars of said train; and, third, by the negligence of defendant in permitting its track to be and remain in a defective condition at at the point where plaintiff's husband was run over and killed.

The first ground was practically abandoned on the trial; upon the second no evidence was introduced; and the case was tried, submitted, and turned upon the third alleged ground of negligence. The plaintiff recovered judgment for $3,500. On the trial the defendant demurred to the plaintiff's evidence. The material evidence for the plaintiff bearing upon the issue submitted was, in substance, as follows: Mrs. Soeder, the plaintiff, testified that she is the widow of William Soeder; that at the time of his death, on the 27th of August, 1886, he was 29 years and 6 months old; that he was a brakeman in the employ of defendant, for whom he had been working in the yard since the 4th of July preceding his death; that he was a sober and industrious man, receiving as wages about $70 per month; and, in answer to the question how many children she had, said: "I have one by him. I have two little ones. I have been twice married." She further testified that her husband had worked about three years as fireman and brakeman for the Missouri Pacific Railway Company before he worked for the defendant. C. W. Sergeant testified that the track upon which the accident happened was an Iron Mountain track; that from Stein street, as one goes down towards the river, the grade is very steep; that they were "hauling" Vandalia, O. & M., and C. & A. cars that night, all of which were heavily loaded; they were transfer cars, that had been taken out of the yard, loaded with ore; that they only took half the cars at a time, shoved them on the switch track, and left them north-east of the Stein-Street crossing, and went back to get the other half; that witness stood at the crossing to make the coupling; that they (he and Soeder) were shoving the cars in there around a sharp curve, and Soeder had to stand on the main track to pass signals from the engineer to witness. The examination then proceeded thus: "Question. Who had to do that? Answer. Soeder. Q. After he signaled, and the car moved, what did he do? A. He signaled back until I went in, and made the coupling. After I made the coupling I gave the signal, `All right, back up.' I answered the signal to get up on top. Q. Is that a brakeman's place? A. Yes, sir; especially shoving in on a track like that. Q. Where did you get up? A. Right at the Stein-Street crossing. Q. How was the train moving? A. Well, you can't judge; it is down grade in there. We just made the coupling, and, after I got up on top, of course they were not moving more than three or four miles per hour." After several questions were asked and answered as to the number of brakemen on the train, and the number that such a train ought to have, the examination on the main question was resumed, thus: "Question. When did you next see the deceased, William Soeder, after you saw him get up on top of the car? Answer. Not until the engine had come around the curve. The fireman came on the gangway, and said: `I think your partner has fallen off, and got hurt.' He then says, in substance, that he went down on the side of the train opposite to that on which Soeder was lying, and called him by name; got no answer, and went around on the other side of the train, and found Soeder lying there, about 45, 50, or 55 feet north-east of Stein street; that from the appearance Soeder must have been dragged from 20 to 25 feet; that the wheels passed over him above the hips; his body was lying outside the rail, and his limbs were lying inside under the cars; he was dead; that he examined the track there that night when he went to work the second time; that Davis, the night yard-master, was with him; that there was a `defective' rail there, — a short rail, — not more than from 15 to 18 feet long; that what is called the `ball' on the short rail was completely worn off, which made a kind of `offset' of an inch and a quarter,...

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112 cases
  • Lee v. St. Louis, M. & S. E. R. Co.
    • United States
    • Court of Appeal of Missouri (US)
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