142 Mo. App. 199 | Mo. Ct. App. | 1910
This is an action for personal injury received by plaintiff in a collision between one of defendant’s trains on which she was a passenger, in company with her husband, and a freight train belonging to the .Chicago, Burlington Sc Quincy Railroad Company. She recovered judgment in the trial court. The Chicago, Burlington & Quincy Railroad was made a joint defendant, but át the close of the evidence a demurrer in its behalf was sustained. Plaintiff’s husband was also injured' and afterwards died, it is claimed from the effect of the injury, and plaintiff, as his widoAV, recovered judgment for his death in the sum of seven thousand dollars.
The collision occurred at a crossing of tracks in the city of St. Joseph. The position of the various tracks and streets at and near the scene have been particularly and clearly pointed out to us by counsel. It seems that the defendant had backed its train a short distance west onto terminal tracks for the purpose of leaving a sleeping car and that to do this it was necessary to cross the track of the Chicago, Burlington & Quincy. After detaching the sleeper defendant’s train then moved forward, east, again crossing the other company’s track and in doing so, the latter’s freight train ran into defendant’s rear coach, in which plaintiff and her husband were seated. It appears that a flagman is kept at the crossing and that he is the agent of both railAvay companies for the purpose of flagging trains. That it is the duty of each engineer to await a signal from this flagman before moving over the crossing. The engineer of the defendant’s train, claim
We therefore conclude, with the trial court, that the demurrer to the evidence was not well taken.
It is next insisted that there was substantial error in instructions given for plaintiff. This complaint is based on the assumption that the petition charges specific negligence as the cause of the injury, and that the instructions were of such breadth as to permit the jury to go outside such specifications in making up a verdict. Plaintiff contends that the charge she makes in her petition is general negligence and hence the criticism on the instructions is not well made; but that, however it may be interpreted, the instructions were in fact no broader than the charge, and therefore the criticism again is without support.
The petition alleges that defendant “carelessly and negligently operated and ran its train in which plaintiff was riding as a passenger” so that the collision
Defendant cites us to Beave v. Transit Co., 212 Mo. 331, but we think it not applicable. For in that case there were several specific acts of negligence enumerated in the petition, yet the instruction there condemned was as broad as could be drawn and thereby allowed the jury to go outside or beyond the limits of the matters specified. In that case the instruction was greatly broader than the petition, while in this case it is the counterpart of the petition.
The further objection to the judgment is that it is entered on a verdict for an excessive amount. We think the objection is well taken. The verdict was for five thousand dollars. Plaintiff’s injuries did not justify so large a sum within the limits the law necessarily attaches in such cases. It would doubtless be .thought by the
In our opinion the judgment should he reversed and the cause remanded unless plaintiff will enter a remittitur within fifteen days for twenty-five hundred dollars. If that is done, the judgment will be affirmed.