Yancey v. Wabash, St. Louis & Pacific Railway Co.

This is an action to recover damages for the killing of plaintiff’s husband, occasioned, as alleged in the petition, by the negligence of defendants, in operating its cars on First street, in the city of Hannibal. The answer, besides being a general denial, set up contributory negligence on the part of deceased. On the trial, the court, at the close of plaintiff’s evidence, instructed the jury that, under the pleadings and evidence, plaintiff was not entitled to recover. Under the instructions of the court, the jury returned a verdict for defendants, upon which judgment was entered, and from this judgment plaintiff has appealed, and assigns for error the action of the court in sustaining a demurrer to the evidence.

It appears, from the record, that two or more railroad tracks were laid on First street, in the city of Hannibal, and that Mr, Yancey, the husband of plaintiff, was, on the fifth of July, 1881, killed on one of *437these tracks by being struck and run over by a box-car, •which had been shunted or kicked by a switch-engine ; that, on top of said car, a brakeman was on his place at the north end of the car, which was moving at the speed of about ten miles an hour, and that, by ordinance, the speed of trains was fixed at six miles an hour. It is shown, by the evidence, that said Yancey had resided in the city of Hannibal for many years and was well acquainted with the movements of trains in that locality ; that he had been, for a long period, agent for a packet company, and at the time of the accident, had a boat-house on the bank of the Mississippi river with which said First street ran parallel; that, on the morning of the accident, between eleven and twelve o’clock, Yancey left the boat-house in connection with one Connors; that the day was very hot and sultry; that Yancey had an umbrella hoisted to shield himself from the sun; that he and his companion were engaged in earnest conversation, and were walking west across said First street, and at the moment of stepping upon the railroad track, Yancey was run over and killed by a box-car, coming from the north, which had been shunted or kicked by the engine, as before stated. It is also shown by the evidence of three of plaintiff’s witnesses, that Yancey was struck just as they stepped on the track; that his entry on the track and the collision were simultaneous. The evidence also shows that the approach of said box-car was plainly visible to all bystanders; that one of them cried out to Yancey and his companion just before' they stepped on the track, the car at that time being about sixty feet from them ; that neither Yancey nor his companion, before entering •on the track, stopped, looked, or listened for the approaching car.

It is, we think, manifest that the negligence of deceased in walking, in broad daylight, with an umbrella hoisted over him, on the railroad track directly *438in front of a moving car, without looking for it, when,, by looking, he could have seen its approach, was the-immediate and proximate cause of his death, and that negligence cannot be imputed to the brakeman, who was at his place on the car, inasmuch as the had a right to presume, even if he saw deceased approaching the track, that he either saw or heard the approach of the car, and would not recklessly put himself in front of the same ; and this is especially so in view of the fact, that the stepping of deceased upon the track, and the collision were so simultaneous, that it was impossible for the brakeman to stop the car after the deceased had thus put himself in peril. The action of the court in sustaining the demurrer to the evidence is fully justified by the following cases: Harlan v. Railroad, 64 Mo. 480; Cagney v. Railroad, 69 Mo. 416; Moody v. Railroad, 68 Mo. 470; Lenix v. Railroad, 76 Mo. 86.

Judgment affirmed.