133 Mo. App. 610 | Mo. Ct. App. | 1908
Plaintiff sustained personal injury from being run upon by one of defendant’s engines. She brought this action for damages and recovered judgment in the trial court.
Since the verdict was for the plaintiff we will assume the facts in the case to be what the evidence in her behalf tends to show them. She was injured at a wagon crossing in the city of St. Joseph. At the approach at that point there is a sharp curve in the track and Aveeds had been permitted to grow to considerable height along close to the ends of the ties. Plaintiff, who was an elderly woman, approached the track wearing a sunbonnet. She did not hear and could not see a train. She proceeded on to within three or four feet of the track when she stopped and looked both ways and did not see a train; she listened and did not hear one. She then proceeded to cross over the rails. She did not look either way while actually on the track. She was struck by a train before getting over. No whistle was sounded, nor was a bell rung.
The court properly ruled that plaintiff was not guilty of contributory negligence, as a matter of laAV, and refused defendant’s demurrer to the evidence.
The instructions refused for defendant in effect made it necessary in order’for plaintiff to recover that she should have looked for a train while actually upon the track, while walking across it. That is an excess of
The judgment is affirmed.