1 S.W. 325 (Mo. 1886), Harris v. Hannibal & St. Joseph Railroad Co.
|Citation:||1 S.W. 325, 89 Mo. 233|
|Opinion Judge:||Norton, J.|
|Party Name:||Harris v. The Hannibal & St. Joseph Railroad Company, Appellant|
|Attorney:||Vinton Pike and Strong & Mosman for appellant. W. N. Boulware for respondent.|
|Case Date:||June 21, 1886|
|Court:||Supreme Court of Missouri|
Appeal from Marion Circuit Court. -- Hon. Theo. Brace, Judge.
(1) The court should have sustained defendant's demurrer to the evidence, and failing to do this erred in refusing to sustain defendant's motion for a new trial on the ground that the verdict is against the evidence and contrary to law. Powell v. Railroad, 76 Mo. 80; Randall v. Railroad, 109 U.S. 478; Murch v. Railroad, 29 N.H. 42; Railroad v. Hazzard, 26 Ill. 373; Railroad v. Fay, 16 Ill. 568; Railroad v. Jones, 95 U.S. 439; Railroad v. Judson, 34 Mich. 34; Brown v. Railroad, 49 Mich. 153; Abend v. Railroad, 19 C. L. J. 350, and note; Smith v. Railroad, 61 Mo. 590-1. (2) Plaintiff's first instruction is too general. It refers the whole question of negligence, or care, to the jury. Yarnall v. Railroad, 75 Mo. 583. (3) The second instruction is erroneous in ignoring the question of plaintiff's knowledge that switching was being done, and a jolt was likely to occur, and withdraws from the consideration of the jury all the attendant circumstances. Barton v. Railroad, 52 Mo. 256-7; Staples v. Canton, 69 Mo. 592-4; Doss v. Railroad, 59 Mo. 37; Strauss v. Railroad, 75 Mo. 185; Price v. Railroad, 72 Mo. 418; 2 Rorer on Railroads, 947. Said instruction is inapplicable to the evidence in this case. (4) The eleventh instruction should have been given. It was based on the facts and circumstances of this case, which, if found as stated in that instruction, would in law amount to negligence on the part of plaintiff.
[89 Mo. 234]
This is an action to recover damages for injuries to plaintiff while a passenger on one of defendant's trains, and alleged to have been occasioned by the carelessness and negligence of defendant's servants in managing the train, whereby he was thrown down on the floor of the car and seriously injured. The answer was a general denial, and also set up contributory negligence on the part of plaintiff. The case is before us on defendant's appeal from the judgment rendered for plaintiff. At the close of plaintiff's evidence defendant asked an instruction by way of demurrer to it, which the
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