54 Mo. App. 161 | Mo. Ct. App. | 1893
— The plaintiff, a widow, is the mother of one William McKenna, who was killed in 1888, while walking along defendant’s right of way, by the cars of one of defendant’s running trains leaving the track at the point of passing or meeting him, and falling upon him. Defendant demurred to the evidence. It was overruled and the judgment was for plaintiff.
The action was brought under section 2121, Revised Statutes, 1879 (Revised Statutes, 1889, sec.
The case as before stated is brought under, section 2121, Revised Statutes, 1879, and as such the instructions given for the plaintiff cannot be upheld. The first instruction contains a number of words such as “wanton,” “recklessness” and “willfulness,” which are not only not a part of the statute upon which the action is based, but are scarcely justified by the evidence. This; howevór, in the absence of any other error might not work a reversal of the judgment. The instruction should also have been confined to the acts
The second and third instructions are wholly unauthorized in cases of this kind. They place plaintiff’s right to recover upon the defective and unsafe condition of the track. Deceased was not a passenger nor was he a fellow-servant with the engineer on the train. His case, therefore, falls under the first division of the section aforesaid, which reads that, “whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or, employe whilst running, conducting or managing any locomotive, car or train of cars; or of any master, pilot, engineer, agent or employe whilst running, conducting or managing any steamboat or any of the machinery thereof, or of any driver of any stage coach or other public conveyance whilst in charge of the same as driver.” * • * * Thus the negligence or unskillfulness from which must arise the liability of defendant is in running, conducting or managing the train. This statute has no reference to defective tracks or roadbeds, and yet the instructions referred to authorize the jury to find for plaintiff on account of unsafe track apart from any question of negligence of the engineer in managing the train. This we regard as clearly erroneous.
Coming to instruction number five our opinion is that it is not proper under facts shown. It omits matters essential to plaintiff’s recovery. It directed
This brings us to the point of considering whether plaintiff has not altogether failed in making out a case against defendant. As before indicated the liability of defendant can only attach, under the statute quoted, by reason of some negligence, unskillfulness or criminal intent of the engineer in running and managing the locomotive and cars on this occasion. Whatever negligence there may have been on the part of defendant generally, as distinguished from and apart from the negligence of this engineer, has nothing whatever to do with the case. As for instance, if it be true that the defendant was negligent in the construction or maintenance of its track or roadbed at the place of the accident, and that deceased was killed in consequence of this; these facts alone would not sustain the
It is proper to make this further remark. It, appears (though not definitely) that deceased knew of the condition of the track at the point of the accident, as he appears to have been one of the workmen who had been engaged in repairing it a few days before. If he was so engaged in repairing it, he of course knew its condition. If therefore he knew the speed at which the train was running (a matter not made clear to my mind) and made no further effort to avoid it than merely to step off the track onto the right of way, he