Sandra Y. Shirrell v. Missouri Edison

The trial court, on motion of defendant, dismissed with prejudice a wrongful death action brought by the widow and minor children of a man allegedly killed as a result of defendant's negligence. The action was dismissed for failure to prosecute. Plaintiffs appealed to the Missouri Court of Appeals, St. Louis District, which reversed and remanded for trial, with one Judge Dissenting. On application of defendant, we ordered the case transferred in accordance with Art. V, § 10, Mo. Const., and pursuant therewith we now consider the case as though here on direct appeal. We affirm. This suit was filed on October 3, 1969. The petition alleged that Donald E. Shirrell, an employee of a road construction firm, was electrocuted when machinery he was operating came in contact with overhanging power lines of defendant which allegedly were negligently maintained. Answer was filed and the parties thereafter engaged in discovery by means of both interrogatories and depositions, the last of which was filed on December 30, 1970. The record discloses no further activity in the case until it was placed by the court on the inactive calendar on September 30, 1971. The next entry was a request by plaintiffs on May 31, 1972, to have the case removed from the dismissal docket where it evidently had been placed, alleging as an explanation for delay to date the fact that the case had required extensive discovery by plaintiffs, that illness of plaintiffs' attorney had caused some delay and that difficulty had been experienced in obtaining an expert witness. The motion stated that an expert witness had now been obtained and that plaintiffs were ready for trial. It was requested that the case be placed on the trial docket.