10 S.W. 846 (Mo. 1889), McPherson v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:10 S.W. 846, 97 Mo. 253
Opinion Judge:Ray, C. J.
Party Name:McPherson et al., by next friend v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Bennett Pike for appellant. A. R. Taylor and P. Leahy for respondent.
Judge Panel:Ray, C. J. Barclay, J., not sitting.
Case Date:February 04, 1889
Court:Supreme Court of Missouri

Page 846

10 S.W. 846 (Mo. 1889)

97 Mo. 253

McPherson et al., by next friend


The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

February 4, 1889

Page 847

Appeal from St. Louis Court of Appeals.


Bennett Pike for appellant.

(1) The plaintiffs' own testimony did not make even a prima-facie case, and the demurrer to the evidence should have been sustained. Wood on Master and Servant, secs. 368, 419; Huffman v. Railroad, 78 Mo. 54. (2) The court committed error in the admission of testimony offered by plaintiffs, against the objection of defendant. Greenl. on Ev. (13 Ed.) p. 491, sec. 440. (3) The court refused to admit proper and legal testimony offered by defendant. Fowler v. Railroad, 56 Tex. 452. (4) The court erred in giving the instructions numbers one, six and seven, upon its own motion. Fitzgerald v. Hayward, 50 Mo. 516; Goetz v. Railroad, 50 Mo. 472; Owen v. Buckschmidt, 54 Mo. 289; Pierce on Railroads (Ed. 1881) 367 and cas. cit. (5) The court committed error in refusing to give the instructions marked nine, ten and eleven, asked by defendant. Rockwell v. Railroad, 64 Barb. 438; Read v. Spalding, 30 N.Y. 630; Michaels v. Railroad, 30 N.Y. 564; Manson v. Davis, 20 Pa. St. 171; Railroad v. Gilliland, 2 A. & E. R. R. Cas. 170. (6) The court committed error in receiving the communications from the foreman of the jury, and from two members of the jury, while the jury were deliberating upon their verdict, and in making the address to the jury in answer to their communications, set out in the record. State v. Alexander, 66 Mo. 147, et seq.; 2 G. & W. on New Trials, 360, 362; 1 G. & W. on N. Tr. (2 Ed.) 75; State v. Cross, 27 Mo. 332; State v. Donley, 64 Mo. 148; State v. Schoenwald, 31 Mo. 147; Knight v. Inhabitants, 13 Mass. 220; Eden v. Railroad, 72 Mo. 212.

A. R. Taylor and P. Leahy for respondent.

Ray, C. J. Barclay, J., not sitting.


Page 848

[97 Mo. 255] Ray, C. J.

This is a suit by plaintiffs, by next friend, in the circuit court of the city of St. Louis, to recover damages for the death of their father, Charles McPherson, who was killed by the derailment of a passenger train on defendant's railway near Bismarck, Missouri, while he was in charge of the engine drawing the train as locomotive engineer. The trial resulted in a verdict and judgment for plaintiffs.

At the conclusion of the evidence in plaintiff's behalf, an instruction in the nature of a demurrer to the evidence was asked by defendant and was refused by the court, and this action is the first ground of error complained of in this court. By putting in its own evidence, defendant thereby waived its exception in this behalf, except that the court may consider the same in connection with all the evidence in the cause, as we have recently held in the cases of Bowen v. Railroad, 95 Mo. 268, and Guenther v. Railroad, 95 Mo. 286.

A further exception was saved to the action of the court in overruling defendant's objections to the following question:

"Q. State what the result of your examination was, as to the capacity of those culverts to carry away waters that accumulated there in time of freshets."

The objections thereto were incompetency, and because the question called for an answer that required expert knowledge and skill, of which it was not shown [97 Mo. 256] that the witness was possessed. The question was addressed to the witness, John W. Denton, who had no knowledge of engineering, but was a farmer of the immediate locality, having lived there all his life, and within two or three hundred feet of said culvert. Prior to the question objected to, said witness had testified, and we believe without objection, that the culvert above the wreck consisted of two box holes about four feet square, with a partition wall between them, and that the culvert was too small for the amount of water that had to go through it. In answer...

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