Hitz v. St. Louis Southwestern Railway Co. , 160 Mo. App. 564 ( 1911 )

REYNOLDS, P. J. —

This is an action by plaintiff, widow of Casimer Hitz, to recover damages on account of the killing of her husband, who was foreman of a crew of track repairers, at work in the yards of the Terminal Association at St. Louis, the train, to which the engine which ran over the deceased was attached, belonging to and being operated by the St. Louis Southwestern Railway Company. Prom a judgment in favor of plaintiff in the amount of $4000', defendant appealed to this court, from which court the cause was transferred to-the Springfield Court of Appeals under an Act of the General Assembly, approved June 12, 1909 (Laws 19091, p. 396, now section 3939, R. S. 1909). In that court the judgment of the circuit court was reversed but the case has been transferred back to us from tbe Springfield Court of Appeals, in consequence of tbe decision of tbe Supreme Court in State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon et al., 232 Mo. 496, 134 S. W. 538, and cases passim. It bas been argued before us and submitted by counsel.

A very full and accurate statement of tbe facts and an opinion by Judge Nixon of tbe Springfield Court of Appeals will be found reported under this same title, 152 Mo. App. 687, 133 S. W. 397. We refer to that and adopt tbe statement of facts there made by Judge Nixon.

On full consideration of tbe case, we are unable to distinguish it, in its facts and the principles involved, from tbe case of Degonia v. St. Louis, Iron Mountain & Southern Ry. Co., 224 Mo. 564, 123 S. W. 807, and more especially from tbe facts in Van Dyke v. Missouri Pacific R. Co., 230 Mo. 259, 130 S. W. 1. On tbe authority of tbe decisions of our Supreme Court in these two cases, tbe judgment of tbe circuit court in this case must be and is reversed.

Caulfield, J., concurs. Nortoni, J., not sitting;