11 S.W. 754 (Mo. 1889), Butts v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:11 S.W. 754, 98 Mo. 272
Opinion Judge:Ray, C. J.
Party Name:Butts v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Thos. J. Portis and Geo. H. Benton for appellant. Dinning & Byrns for appellant.
Judge Panel:Ray, C. J. Sherwood and Black, JJ., concurring. Brace, J., absent and Barclay, J., dissents.
Case Date:June 10, 1889
Court:Supreme Court of Missouri
 
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Page 754

11 S.W. 754 (Mo. 1889)

98 Mo. 272

Butts

v.

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

Supreme Court of Missouri

June 10, 1889

Appeal from Jefferson Circuit Court. -- Hon. John L. Thomas, Judge.

Reversed.

Thos. J. Portis and Geo. H. Benton for appellant.

(1) The petition fails to state facts sufficient to constitute a cause of action. State ex rel. v. Carroll, 63 Mo. 156; Field v. Railroad, 76 Mo. 614; Price v. Railroad, 72 Mo. 414.

Dinning & Byrns for appellant.

(1) The petition states a cause of action. (2) The court did right in overruling defendant's demurrer to plaintiff's testimony. O'Connor v. Railroad, 94 Mo. 150; Buesching v. Gas Light Co., 73 Mo. 219; Step v. Railroad, 85 Mo. 229; Petty v. Railroad, 88 Mo. 320; Zimmerman v. Railroad, 71 Mo. 476; Shearman & Redf. on Neg. (3 Ed.) sec. 31; Brown v. Railroad, 32 N.Y. 597; Kay v. Railroad, 65 Pa. St. 269; Butler v. Railroad, 28 Wis. 487; Railroad v. Sweeney, 52 Ill. 325.

Ray, C. J. Sherwood and Black, JJ., concurring. Brace, J., absent and Barclay, J., dissents.

OPINION

[98 Mo. 273] Ray, C. J.

This is an action to recover five thousand dollars damages for the death of plaintiff's wife, which was caused by one of defendant's trains, whilst passing through the town of DeSoto, Missouri, and at a public crossing over the railroad tracks in said town.

Defendant has appealed from the verdict and judgment, for said sum, in favor of plaintiff. The answer contained, first, a general denial; second, contributory negligence, on part of the deceased; the replication was a general denial to new matter.

Defendant offered no evidence in its own behalf, but at the close of the evidence for plaintiff, asked an instruction in the nature of a demurrer to the evidence, which the court refused, and the exception taken by defendant, in this behalf, is now urged in this court, as error, requiring a reversal of the judgment in the cause.

The evidence shows that there were some six or seven different tracks, being the main track on the west, and the several side tracks, comprising the switch-yards, extending from north to south through, or nearly through, the length of said town of DeSoto, and that the public crossing in question, over said tracks is about or near the middle of said yards, the tracks themselves being generally straight or without curves, except such as are necessary to join and connect the said tracks, and that the tracks have considerable down grade, from south to north at this point. The train, which was, it seems, an ordinary freight train, was at the time of the injury, coming from the south, without the engine [98 Mo. 274] attached, the same having been, as the evidence shows, "cut off," or detached several hundred yards, perhaps, south of the said crossing. After thus cutting...

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