Tetwiler v. St. Louis, Iron Mountain & Southern Railway Co. , 170 Mo. App. 473 ( 1913 )

ROBERTSON, P. J. —

This action to recover damages on account of the death of Thomas Allen was instituted by the public administrator of Butler county Missouri, who was in charge of his estate; and has been tried in the circuit court twice. At the first trial the verdict of the jury was for the defendant and the plaintiff appealed to the Supreme Court, which reversed the judgment and remanded the cause for a new trial. The opinion is in 242 Mo. 178, 145 S. W. 780, where a-statement of the facts as disclosed-at the first trial may he found. Upon the second trial the jury returned a verdict in favor of the plaintiff for $5000 and the defendant has appealed to this court.

In the second trial of.the case the testimony of David Sheets taken at the first trial and preserved in the bill of exceptions was again submitted to the jury, so also was the testimony of several other witnesses; hence, the chief testimony upon which the Supreme Court considered the case is yet present verbatim in the'record submitted here.

In addition to what is stated in the opinion of the Supreme Court as to the facts, we note that some of the witnesses testified that the space between the cars referred to therein was opened up for the express purpose of allowing the employees to pass through, and that when the deceased started to enter this opening the cars were standing still. The engineer. on the second trial testified as follows:

“Q. Now, this opening there was necessary for the repair men and engine men to get through there and use their shanty, and have a place to get through; wasn’t it'? A. How is that?

“Q. That opening was necessary for these men to use it? A. Oh, sure, when it was done, there, it was necessary for them to use it.’.’

The engineer testified that previous, to the time he moved his engine which caused the accident, he had been standing still for two or three minutes; that he saw the torches carried by the deceased and his partner, Sheets; that when he last saw them “they were right at the opening, going westward. ’ ’ The engineer also testified that the deceased and his partner, Sheets, conld have walked from their starting point to the opening in about two minutes, and as he testified that he had been standing still for about three minutes previous to the time when he last saw the men, the jury may well have presumed that the engine was not in motion at the time when the deceased started to enter the opening. It is admitted by the engineer that no signal was given when he moved the engine.

As stated in the opinion of the Supreme Court, we are unable to ascertain how the deceased could have determined when a safer opportunity would have presented itself for passing through the opening than the one which he selected.

We . do not have the authority to overrule the Supreme Court in this case, neither have we, under the facts disclosed by the record, the inclination to criticize that opinion. The judgment of the trial court is affirmed.

All concur.