Neier v. Missouri Pacific Ry. Co.

Citation12 Mo.App. 35
PartiesJOSEPH NEIER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Decision Date28 March 1882
CourtCourt of Appeal of Missouri (US)

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.

BAKEWELL, J., delivered the opinion of the court.

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 defendant. 12 Mo.App. 25. The two causes were argued together and submitted together by appellant upon the same brief.

It is unnecessary to go over the points considered in that case; as to these points, which are also made in this case, we refer to our opinion delivered in that case.

There was, in this case, a second count in the petition, in which plaintiff sought to recover for injury done to his wagon and harness. The jury found a verdict of $2,000 on the first count, and of $85 on the second count, and there was judgment accordingly.

1. The second count in the petition is as follows: Plaintiff, having referred to the parts as stated in the first count of the petition, further, and for a second cause of action, states that, by reason of the careless acts of defendant, as stated in the first count of the petition, in negligently running its locomotive, on August 9, 1880, against the milk-wagon of the plaintiff, on Poplar Street, in the city of St. Louis, the said wagon was upset and broken, and the harness of the horse which then was hitched to said wagon entirely broken and ruined, and said horse also injured, by which he was compelled to hire another horse and wagon; that the contents of the said wagon, consisting of milk-cans, milk, and other articles, were also destroyed and lost, all to the damage of plaintiff of $250, for which, with costs, he prays judgment.” Appellant claims that this count states no cause of action, and is so defective that it cannot be aided by verdict. The right of plaintiff to institute the action, the character in which he sues, and in which defendant is sued, are matters of inducement. The injury through defendant's negligence, the gist or substance of the cause of action, seem to be stated sufficiently to support the verdict. A cause of action can fairly be gleaned from the count, and the reference to the former count for matters which are not of the gravemen of the charge does not come within the rule laid down in Clark v. Whittaker (9 Mo. App. 446). The objection to the petition is, we think, too late.

The cause was submitted to the jury upon the following instructions, of which the last two were given at the instance of defendant:--

1. “The court instructs the jury, that...

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3 cases
  • Jackson v. Kansas City, Fort Scott and Memphis Railroad Company
    • United States
    • Missouri Supreme Court
    • June 30, 1900
    ...Union Railway & Transit Co., 90 Mo. 314, 2 S.W. 427, was the same kind of case, and the same rule was announced. So, also, were Neier v. Railroad, 12 Mo.App. 35; Eswin Railroad, 96 Mo. 290, 9 S.W. 577; Schlereth v. Railroad, 96 Mo. 509, 10 S.W. 66; Grube v. Railroad, 98 Mo. 330, 11 S.W. 736......
  • Jackson v. Kansas City, Ft. S. & M. R. Co.
    • United States
    • Missouri Supreme Court
    • May 8, 1900
    ...Keim v. Transit Co., 90 Mo. 314, 2 S. W. 427, was the same kind of a case, and the same rule was announced. So, also, were Neier v. Railway Co., 12 Mo. App. 35; Eswin v. Railway Co., 96 Mo. 290, 9 S. W. 577; Schlereth v. Railway Co., 96 Mo. 590, 10 S. W. 66; Grube v. Same, 98 Mo. 330, 11 S.......
  • Neier v. Missouri Pacific Ry. Co.
    • United States
    • Missouri Court of Appeals
    • March 28, 1882

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