175 Mo. App. 334 | Mo. Ct. App. | 1914
Plaintiff’s action is brought by her guardian (she being insane) for killing her husband. The trial court sustained defendant’s demurrer to the evidence in plaintiff’s behalf.
It appears that deceased was defendant’s section foreman and that he was a man of long experience. This action is sought to be sustained on the theory of the humanitarian rule. The section crew under charge of deceased was working in the switch yards at one of defendant’s stations. The deceased himself was engaged in picking up broken pieces of angle bars and bolts and piling them. At this time one of defendant’s freight engines was doing switching in the yards. In picking up pieces of these bars deceased bent down on the track. While in this position the engine, which had just then switched a car, approached him from behind. The engineer became aware of his peril and his seemingly being oblivious to it, and immediately gave a blast of the whistle, but deceased did not move in time to avoid being struck.
In this case the defendant did just what was not. done in the cases of Hinzeman v. Railway Co., 182, Mo. 611 and 199 Mo. 56. There the deceased section man was seen to be oblivious of his peril and yet no-whistle sounded until he was struck, while here the' blast'was given as soon as his peril was discovered. Then, instead of instantly jumping out of the way, he-straightened up,, turned toward the engine and then attempted to get away. His son was plaintiff’s witness. He said that deceased’s back was to the train and “My father was bending down picking up bolts. I was looking at him all the time. I was when the whistle blew. I judge the train was sixty or fifty feet from him then. He then raised up and looked towards the
There was otter evidence in the case about distances, when and how the switching was done, how it was customarily done, etc.; but the foregoing are the essential facts which control the case: The judgment will be affirmed.