98 Mo. 50 | Mo. | 1888
— This is a suit by the widow of E. B. Barker to recover the statutory penalty of five thousand dollars for the death of her husband who was run over and killed by a train of the defendant’s cars. The defendant offered no evidence, and the question is, whether the defendant’s instruction in the nature of a demurrer to the plaintiff’s evidence should have been given.
The evidence offered by the plaintiff discloses these facts: Barker resided in a house close to the defendant’s track. There is a public road thirty-five feet south of his house ; the south side of this road is separated from the defendant’s right of way by a fence, and the track of the Wabash Railway Company runs parallel to the track of the defendant, but adjoining and to the south thereof. Barker left his house, went south across the public road which goes directly to St. Joseph, got over the fence, and ascended a bank some six or eight feet in height to the defendant’s track. He then started westward on
There can be no doubt that Barker was guilty of negligence in going upon the track at a time when he knew the train was due, without looking or listening for it. Besides this he got upon the track at a place other than a crossing, and was making a foot-path out of the railroad track, and that, too, at a place where the defendant was required to and had fenced its road. In short he was a trespasser, decía red to be such by the statute law of this state. R. S. 1879, sec. 809. Being a trespasser, the company owed him no duty, except not to wantonly, wilfully or with gross negligence injure him. The company was not in duty bound to look out for him. Maher v. Railroad, 64 Mo. 267 ; Hallihan v. Railroad, 71 Mo. 114 ; Maloy v. Railroad, 84 Mo. 270; Rine v. Railroad, 88 Mo. 392; Williams v. Railroad, 96 Mo. 257 ; Langan v. Railroad, 72 Mo. 394; Comly v. Railroad, 12 Atl. Rep. 496.
It is thought advisable to say again that Barker got