12 S.W. 891 (Mo. 1890), Pope v. Kansas City Cable Railway Co.

Citation:12 S.W. 891, 99 Mo. 400
Opinion Judge:Brace, J.
Party Name:Pope v. The Kansas City Cable Railway Company, Appellant
Attorney:Johnson & Lucas for appellant. John W. Beebe for respondent.
Case Date:January 27, 1890
Court:Supreme Court of Missouri
 
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Page 891

12 S.W. 891 (Mo. 1890)

99 Mo. 400

Pope

v.

The Kansas City Cable Railway Company, Appellant

Supreme Court of Missouri

January 27, 1890

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Johnson & Lucas for appellant.

(1) The petition does not state a cause of action, because it does not show in what the negligence consisted. Gurley v. Railroad 93 Mo. 455; Peltz v. Eichele, 62 Mo. 171. (2) The demurrer to the testimony introduced by plaintiff should have been sustained. Purl v. Railroad, 72 Mo. 168; Powell v. Railroad, 76 Mo. 80; Kelly v. Railroad, 88 Mo. 534; Lenix v. Railroad, 76 Mo. 90; Yancey v. Railroad, 93 Mo. 433; Stepp v. Railroad, 85 Mo. 229; Railroad v. Kuehn, 8 S.W. 484; Eswin v. Railroad, 96 Mo. 290; Butts v. Railroad, 11 S.W. 754. (3) Instruction 5 given for plaintiff is erroneous. (a) It assumes as a fact that defendant was operating the train. Dowling v. Allen & Co., 88 Mo. 293. (b) It requires stoppage of the train regardless of its safety. Bell v. Railroad, 72 Mo. 50. (c) It was indefinite and confusing in not informing the jury on which track the gripman was required to have seen the deceased. (d) It was not justified by the testimony as to the facts. Kelly v. Railroad, 75 Mo. 138; Rine v. Railroad, 88 Mo. 392. (4) Instruction numbered 1, asked by defendant, should have been given, for the reason that the whole testimony failed to show that defendant was operating the cars by which deceased was killed, and did not even tend to prove any negligence on the part of those in charge of the cars. (5) The verdict of the jury shows such a palpable disregard of the law and the testimony, that it is evidently the result of mistake or prejudice, and should work a reversal of the cause.

John W. Beebe for respondent.

(1) The petition is sufficient. Schneider v. Railroad, 75 Mo. 295; Johnson v. Railroad, 5 S.W. 790; Sullivan v. Railroad, 10 S.W. 852; Bliss on Code Pleading, sec. 211. (2) The demurrer to the plaintiff's testimony was properly overruled. Buesching v. Gaslight Co., 73 Mo. 219; Kelly v. Railroad, 75 Mo. 138; Frick v. Railroad, 75 Mo. 595; Scoville v. Railroad, 81 Mo. 440; Welch v. Railroad, 81 Mo. 466; Donahue v. Railroad, 91 Mo. 357; Kelly v. Trans. Co., 95 Mo. 279; Waller v. Railroad, 83 Mo. 608; Brown v. Railroad, 50 Mo. 461; Railroad v. McDonnell, 43 Md. 534; Guenther v. Railroad, 95 Mo. 286; Jennings v. Railroad, 11 S.W. 999. (3) The plaintiff's fifth instruction correctly declares the law applicable to this case. (4) The point made that the testimony failed to show defendant was operating the road at the time of the casualty is without foundation. The plaintiff's...

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