11 S.W. 563 (Mo. 1889), King v. The Missouri Pacific Railway Company

Citation:11 S.W. 563, 98 Mo. 235
Opinion Judge:Black, J.
Party Name:King v. The Missouri Pacific Railway Company, Appellant
Attorney:T. J. Portis and T. G. Portis for appellant. T. B. Haughawont for respondent.
Judge Panel:Black, J. Sherwood, J., absent.
Case Date:April 01, 1889
Court:Supreme Court of Missouri
 
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Page 563

11 S.W. 563 (Mo. 1889)

98 Mo. 235

King

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

April 1, 1889

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

Reversed and remanded.

T. J. Portis and T. G. Portis for appellant.

(1) The trial court committed error in permitting the plaintiff's witness, John Small, against defendant's objection, to answer the question: "State whether or not that crossing is dangerous for a stranger crossing there?" Hurt v. Railroad, 94 Mo. 255; Road v. Leonhardt, 5 A. 346; Maur v. State, 3 S. Rep. 207; Belch v. Railroad, 18 Mo.App. 80; Kennedy v. Holliday, 25 Mo.App. 513; Tate v. Railroad, 64 Mo. 153; Gutridge v. Railroad, 94 Mo. 468. (2) The defendant's instruction, in the nature of a demurrer to the evidence, as prayed at the close of the whole case, should have been given, because the uncontradicted evidence shows conclusively that the deceased's own negligence, carelessness and recklessness directly contributed to bring about his death. Powell v. Railroad, 76 Mo. 80; Moody v. Railroad, 68 Mo. 470; Harlan v. Railroad, 65 Mo. 22; Railroad v. Houston, 95 U.S. 697; Donohue v. Railroad, 91 Mo. 357; Bell v. Railroad, 72 Mo. 50; Rine v. Railroad, 88 Mo. 392; Buesching v. Gas Co., 73 Mo. 229; Lenix v. Railroad, 76 Mo. 86. (3) The trial court committed error in the instructions given to the jury, especially in that part of the said instructions which told the jury if they found for the plaintiff they should "assess her damages at the sum of five thousand dollars." R. S. 1879, secs. 2121, 2122, 2123; Proctor v. Railroad, 64 Mo. 112; Connor v. Railroad, 59 Mo. 285; Flynn v. Railroad, 78 Mo. 195; Holmes v. Railroad, 69 Mo. 536; Elliott v. Railroad, 67 Mo. 272.

T. B. Haughawont for respondent.

(1) The negligence of the appellant was proved beyond question. (a) In failing to ring the bell or sound the whistle eighty rods from the crossing, and in not continuing to ring the bell till the engine passed the crossing. (b) In failing to erect a signboard at the crossing. (c) In running the train at an unusual rate of speed. (2) It was not error in the court to admit the testimony of John Small and W. M. LaForce as to the crossing being dangerous to a stranger; that a stranger passing over the road would not be liable to see the crossing. Said evidence was admissible as non-expert testimony...

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