155 Mo. App. 163 | Mo. Ct. App. | 1911
This is a suit for damages alleged to have accrued to plaintiff, administrator, for the use and benefit of the widow of his deceased, under the wrongful death statute of the State of Illinois. Plaintiff recovered a judgment in the amount of $5000' and defendant prosecutes the appeal.
Before looking into the merits of the controversy, it is essential to first dispose of a matter preliminary to the right of the court to review the appeal. It is argued by plaintiff that as defendant’s abstract of the record on file here omits to recite the fact of the judgment given against it in the court below we are precluded from reviewing the merits of the case for the reason defendant has not complied with the statute by filing in this court an abstract of the entire record. It is true the printed abstract is deficient in the matter suggested. But the appeal is in the short form authorized by the statute and a duly certified copy of the judgment itself together with the order granting the appeal
The suit is prosecuted by the administrator of one, Finnazzo, deceased, who came to his death while in the employ of defendant as a section hand, engaged in the performance of his duties in defendant’s switching yards at DuQuoin, Illinois. It proceeds under the wrongful death statute of the State of Illinois, which was pleaded and proved in the case, and authorizes a suit by such administrator for the use and benefit of the widow of decedent, who it appears resides in Italy. Decedent, was a resident of the State of Illinois where he entered into the contract of hire with defendant and afterward came to his death. In view of these facts, it is argued by plaintiff the question pertaining to the reciprocal duties of defendant and the decedent touching the right of recovery, aside from the wrongful death statute itself, is •to be considered and determined under the adjudicated law of the State of Illinois pertaining to the relation of master and servant and especially reflecting the view’ of the courts of that state as to the reciprocal rights and
Under the more recent decisions of our Supreme Court, it is obvious that plaintiff may not recover in this suit for the reasons, first, there appears no negligence on the part of defendant available as a cause of action to deceased had he survived his injury, and second, his own conduct was such as to preclude the right on the ground that it contributed to the injury. As before stated, deceased was a section hand in the employ of defendant and engaged in performing the duties of such •occupation on its track at DuQuoin, Illinois when he came to his death. DuQuoin is, a small station at which are maintained several switch tracks by defendant and the locomotive_which occasioned, decedent’s injury and death was engaged in switching cars in the yards at that' point. The time of the injury was about eight o’clock-in the morning and besides being in broad daylight, the view was open and unobstructed either way on the tracks for a long distance. Decedent and several of his associates were engaged in driving spikes into the ties adjacent to rails of the track and the locomotive with three cars attached passed by them to the north. As the-locomotive approached, decedent and his companions stepped aside from the track in order to permit it to-pass immediately after the passing of the locomotive:
It is conceded throughout the case that neither the engineer nor fireman saw the decedent while on the track, either at the time of approaching- him or at the time he was run upon, for the reason the car which was being pushed before the locomotive obstructed their view. It appears, too, that no watchman was stationed on the car for the purpose of warning and that no signal was given of the approach of the train by sounding the whistle or ringing the bell. In the circumstances stated, •if the question were open and untrammeled by decisions .of the superior court of the state, we would be inclined to say.that the precepts of ordinary care required the engineer to give some signal of warning that he was about to approach the men working on the track, for he knew they were thereabout, at least having passed them standing on the right of way but two or three minutes before when he moved the three cars to the northward. Especially is this true in view of the fact that upon disconnecting two of the cars, the engineer approached the point from the north where the men were seen assembled only a few moments before, both with his view obscured by the car in front of the engine and without a man stationed on such car as a lookout. It would seem that the engineer should have anticipated as a fact within the reasonable probabilities of the case that the section men had resumed their work on the track and the consequent possibility of injury if suddenly approached
The Constitution commands that the courts of appeals shall be guided by the last previous ruling of the Supreme Court on any question of law or equity. In view of this command, it becomes our duty to reverse the judgment and declare there is no right of recovery for the reasons above stated. It is so ordered;