Walsh v. Missouri Pac. Ry. Co.

• Decision Date: 15 December 1890
• Court: Missouri Supreme Court
• Parties: WALSH <I>et al.</I> v. MISSOURI PAC. RY. CO.

14 S.W. 873

102 Mo. 582

WALSH et al. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

December 15, 1890.

RAILROAD COMPANIES — VIOLATION OF ORDINANCE — SPEED — PERSONAL INJURIES — EVIDENCE.

1. In an action against a railroad company for the death of plaintiffs' intestate, alleged to have been occasioned by defendant's having run its train at a speed in excess of that allowed by a city ordinance, the testimony of a witness, who saw the train, that it was running from 18 to 20 miles an hour, is competent to show the speed.

2. Where the injury was caused by cars jumping the track and demolishing the house in which plaintiffs' intestate was sleeping, the jury is warranted in finding that the injury was due to the excessive speed of the train, though there is no direct evidence that such speed was the cause of the cars leaving the track in the first instance.

3. Plaintiffs' intestate was seriously bruised by the falling walls and roof, and the physicians who attended him testified that there were serious internal injuries in the region of the liver and abdomen. He had been a strong man, but only lived a month after the accident. Held, that the jury were warranted in finding that he died of the injuries received in such accident.

4. Where it is shown that the cars were running on defendant's track when wrecked, it will be presumed, in the absence of evidence to the contrary, that they were operated by defendant.

5. Where the bill of exceptions shows that at the trial plaintiffs' counsel asserted that the locality which was excepted from the operation of the ordinance was some distance from the place of the accident, and this was not denied by defendant's counsel, the fact that the accident did not occur in the excepted locality will be taken to have been conceded at the trial.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

B. Pike, for appellant. John M. Dickson, for respondents.

BLACK, J.

The plaintiffs are the minor children of Patrick Walsh. They prosecute this suit by their next friend to recover damages for the death of their father who it is alleged was injured by the negligence of defendant, and that he died from the injuries so received. The cause of action is based upon an alleged negligent violation of an ordinance of the city of St. Louis, limiting the rate of speed of cars and locomotives propelled by steam do not exceeding six miles per hour. The petition states that Walsh was in bed at a house near the corner of the Levee and Poplar street; that an engine and cars, operated by defendant's servants at a speed exceeding six miles an hour, ran off the track against the walls of the house aforesaid, whereby the walls were overthrown and fell upon Walsh; that Walsh received internal injuries in the stomach and bowels by reason of the negligence of defendant's servants in operating the engine and cars at said rate of speed, and from which injuries he died. The answer is a general denial, and contributory negligence. The defendant offered no evidence, but interposed a demurrer to that produced by the plaintiffs, which was overruled. Insufficiency of the evidence to support the verdict is the basis of all of the objections urged by the appellant in this court. The evidence shows that Patrick Walsh, the deceased, and one Schofield, were sleeping in an office building owned by Norton, for whom they were working. The witness Katz testified that his place of business was on South Levee, one block from Poplar street; that he was standing in front of his door, and saw the train before it ran into the house; that it was a long train, and was running at a rate of speed from 18 to 20 miles per hour; that he did not see the train strike the house, but he saw it stop there. Police Officer Messer gave evidence as follows: "I recollect the accident in which the office on corner of the Levee and Poplar street was injured. I was there in a few minutes after it was struck. The office was on the south-west corner of the Levee and Poplar street." Being asked: "Where does the Missouri Pacific track run?" he answered: "It comes in right through the lumber-yard, south of the office. The track runs right close to it. The office stands on the outside of the curve. Saw the cars that were wrecked. Saw cars directly across the track. There were three cars standing one by the side of the other. I could not say which one struck the office. It was completely demolished." He says he saw Walsh there, and that two or three men were holding up the roof for him to get out. The office was a one-story brick building. The witness says he does not know how many cars were off the track. There may have been 6, 8, or 10. Saw but one engine, and that was at the rear of the train. Other evidence tends to show that there was one and perhaps two at the front of the train. Another witness says he saw cars in every direction; that he found several cars demolished; that he saw one car-wheel lying on the track with the flanges broken,...