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

• Decision Date: 02 June 1891
• Citation: 105 Mo. 192,16 S.W. 591
• Court: Missouri Supreme Court
• Parties: STOHER v. ST. LOUIS, I. M. & S. RY. CO.

16 S.W. 591

105 Mo. 192

STOHER v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

RAILROAD COMPANIES — INJURIES TO SERVANT — UNSAFE TRACK.

1. When a fireman is injured in a wreck caused by the track sinking by reason of a great accumulation of water, which could have been prevented by a sufficient outlet for it through the road-bed, and on previous occasions the track has been overflowed at the same point, there is evidence of negligence sufficient to sustain a verdict against the railroad company.

2. It will be presumed that the running of the train was directed by the company or by some authorized officer, and if, under the circumstances, it was negligent to run the train at all, such negligence will be attributed to the company, and not to the engineer and fireman.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

H. S. Priest and B. Pike, for appellant. Patrick Leahy and A. R. Taylor, for respondent.

MACFARLANE, J.

Plaintiff prosecutes this action by her next friend for damages on account of the death of her father, who was killed by the derailment of an engine of defendant upon which he was at work as a fireman. The negligence charged was a failure to use reasonable care in providing deceased with a safe and secure track over which he was required to work. The particular charge was that defendant failed to provide water-ways under the track of the road of sufficient capacity to carry off accumulated water from heavy rain-falls, and by reason of such neglect the water backed up over the track, and so softened and washed the road-bed as to cause a sinking of the rails; that the engine upon which deceased was engaged, while being run in defendant's business over this track, and by reason of the injury thereto by accumulated waters, was thrown from the track, and deceased was thereby killed. The answer was a general denial; a special plea that the water-ways were sufficient to discharge all waters for such ordinary rains as could reasonably have been anticipated, and that the storm which caused the damage was unprecedented, and such as defendant could not reasonably have anticipated; and the plea of contributory negligence on the part of deceased and his fellow-servant, the engineer in charge of the engine, in not taking needful precautions against the possible effect of the storm. The case has been considered by this court upon a former appeal, and the judgment was then reversed, and the case...