10 S.W. 66 (Mo. 1888), Schlereth v. Missouri Pacific Railway Co.

Citation:10 S.W. 66, 96 Mo. 509
Opinion Judge:Sherwood, J.
Party Name:Schlereth v. The Missouri Pacific Railway Company, Appellant
Attorney:Bennett Pike for appellant. E. P. Johnson for respondent.
Judge Panel:Sherwood, J. Ray, J., absent.
Case Date:December 20, 1888
Court:Supreme Court of Missouri

Page 66

10 S.W. 66 (Mo. 1888)

96 Mo. 509



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner, Judge.

The following are the instructions discussed in the opinion:

"The jury are instructed that if they believe from the evidence, that on or about the twenty-sixth day of November, 1884, the plaintiff one Anton Schlereth were husband and wife and that said Anton died on or about the day aforesaid and left the plaintiff surviving him as his widow, and that on or about said day, the defendant, by its officers, agents, servants, employes, was running, conducting or managing one of its locomotives, and that said locomotive was then running on, along and over defendant's line of railway within the limits of the city of St. Louis, and that said locomotive was then run against or upon the body of said Anton, and that said Anton was then struck with said locomotive and injured, and that said Anton died of such injury on or about said day, and that such striking of said Anton and injury to him, resulted from, or was occasioned by the negligence of any of said officers, agents, servants or employes of defendant whilst running, conducting or managing said locomotive at or prior to the time said locomotive was run against, or upon the body of said Anton, they will find for the plaintiff.

"The jury are further instructed that if they find for the plaintiff they will assess her damages at the sum of five thousand dollars."

Reversed and remanded.

Bennett Pike for appellant.

(1) The testimony did not make a prima-facie case, and the demurrer to the evidence should have been sustained. McGowan v. Railroad, 61 Mo. 528; Marshall v. Schricke, 63 Mo. 309; Travers v. Railroad, 63 Mo. 424; Zimmerman v. Railroad, 71 Mo. 484; Lenix v. Railroad, 76 Mo. 86, 91; Railroad v. Hall, 72 Ill. 222. (2) The court committed error in giving the instructions asked by plaintiff. Lester v. Railroad, 60 Mo. 265; Turner v. Railroad, 51 Mo. 501; Flynn v. Railroad, 78 Mo. 195; Holmes v. Railroad, 69 Mo. 585. (3) The court erred in refusing to give the instructions asked by defendant. See cases cited under first head.

E. P. Johnson for respondent.

(1) The failure to ring the bell continuously at any place within the limits of the city, whether on a street or not, while running, and running at a rate of speed exceeding six miles per hour, in violation of the city ordinances, was negligence per...

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