12 Mo.App. 35 (Mo.App. 1882), Neier v. Missouri Pacific Railway Co.

Citation:12 Mo.App. 35
Opinion Judge:BAKEWELL, J.
Party Name:JOSEPH NEIER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Attorney:E. A. ANDREWS and H. S. PRIEST, for the appellant. LOUIS GOTTSCHALK, for the respondent.
Case Date:March 28, 1882
Court:Court of Appeals of Missouri
 
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Page 35

12 Mo.App. 35 (Mo.App. 1882)

JOSEPH NEIER, Respondent,

v.

MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

March 28, 1882

          1. If the substance of the cause of action is sufficiently stated in one count, it will support a verdict, though matters of inducement are not set out except by reference to another count in the petition.

         2. In an action by a husband for the loss of the services of his wife by reason of injuries occasioned by the negligent acts of the defendant, a recovery may be had for expenses incurred by reason of such injury, as well as for the loss of her services directly resulting from the injury.

         3. A railroad company whose track is laid upon a public street has no exclusive right to use such street for the purpose of running its trains thereon.

         4. Negligence of the plaintiff which contributes remotely to the injury will not prevent a recovery, if the defendant, after discovering the danger, could, by the exercise of reasonable care, have avoided the injury.

         5. If the plaintiff, after notice of the danger, could, by reasonable care, have avoided the danger, there can be no recovery, although the speed of the defendant's train exceeded the limit fixed by ordinance.

         6. In the use of a public street, all persons are required to exercise reasonable care to avoid a collision, according to the different modes of travel adopted.

         7. Under a petition stating the specific act of negligence to have been the high rate of speed of the defendant's train, it is not improper to instruct as to the question whether the defendant, after discovering the danger, could, by exercising reasonable care, have avoided the injury.

         APPEAL from the St. Louis Circuit Court, LINDLEY, J.

          Affirmed.

         E. A. ANDREWS and H. S. PRIEST, for the appellant.

         LOUIS GOTTSCHALK, for the respondent.

         OPINION

         BAKEWELL, J.

          This is an action instituted by plaintiff to recover for the loss of services of his wife, occasioned by the carelessness of defendant's servants in running its locomotive on a street of the city of St. Louis, at a speed prohibited by city ordinance. The evidence in the case as to the circumstances of the accident was substantially the same as in the case of Neier and wife against the same...

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