11 S.W. 1009 (Mo. 1889), Dunn v. Cass Avenue & Fair Grounds Railway Co.

Citation:11 S.W. 1009, 98 Mo. 652
Opinion Judge:Brace, J.
Party Name:Dunn, by next friend, Appellant, v. Cass Avenue & Fair Grounds Railway Company
Attorney:A. R. Taylor for appellant. Leonard Wilcox and Nathan Frank for respondent.
Judge Panel:Brace, J. Barclay, J., concurs in the result.
Case Date:June 24, 1889
Court:Supreme Court of Missouri
 
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Page 1009

11 S.W. 1009 (Mo. 1889)

98 Mo. 652

Dunn, by next friend, Appellant,

v.

Cass Avenue & Fair Grounds Railway Company

Supreme Court of Missouri

June 24, 1889

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer, Judge.

Affirmed.

A. R. Taylor for appellant.

(1) Although the plaintiff was negligent, yet if the defendant, by observing the ordinance, could have prevented the injury, the plaintiff is still entitled to recover. Kelly v. Railroad, 75 Mo. 139; Bergman v. Railroad, 88 Mo. 683; Scoville v. Railroad, 81 Mo. 440; Welch v. Railroad, 81 Mo. 472; Keim v. Railroad, 90 Mo. 324; Dunkman v. Railroad, 95 Mo. 244. (2) Under the evidence in the case there was a clear breach of the duty required by the ordinance in allowing the plaintiff, a child of tender years, to enter upon and leave the car whilst in motion. And it was clearly a question for the jury as to whether this was a contributing cause of the injury. Indeed it is certain that but for this neglect of the defendant to observe the ordinance the injury to plaintiff would not have occurred. Such neglect was a proximate cause. Evans v. Railroad, 11 Mo.App. 471; Patten v. Railroad, 32 Wis. 529; Winkler v. Railroad, 21 Mo.App. 106.

Leonard Wilcox and Nathan Frank for respondent.

(1) There was no error in refusing plaintiff's instruction, number 7, because instruction number 1 given by the court was substantially the same and possessed the merit of closer conformity to the pleadings. Nugent v. Curran, 77 Mo. 327; State v. Elliott, 90 Mo. 356; Ins. Co. v. Hauck, 83 Mo. 21. (2) It was not error to refuse plaintiff's instruction number 10 because there was no evidence that defendant was negligent as alleged with respect to its north bound car. Cotton v. Wood, 8 C. B. [N. S.] 570, 571; Powell v. Railroad, 76 Mo. 84, 85; Commissioners v. Clark, 94 U.S. 284; Dunn v. Railroad, 21 Mo.App. 201, 202. (3) If point 2 is not well taken, yet under the undisputed facts in this case, plaintiff cannot recover, if at the time of the accident he did not exercise care and caution commensurate with his age and capacity; so that it was proper to submit the issue of plaintiff's contributory negligence to the jury. Eswin v. Railroad, 96 Mo. 290; Boland v. Railroad, 36 Mo. 490; Ostertag v. Railroad, 64 Mo. 424; Yancey v. Railroad, 93 Mo. 437; Kelley v. Railroad, 88 Mo. 539; Lenix v. Railroad, 76 Mo. 91; Powell v....

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