Becke v. Missouri Pacific Railway Co.
Decision Date | 30 June 1890 |
Citation | 13 S.W. 1053,102 Mo. 544 |
Parties | Becke v. The Missouri Pacific Railway Company, Appellant |
Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.
Affirmed.
Bennett Pike for appellant.
The refusal of defendant's instructions was error. Chapman v. Railroad, 19 N.Y. 341-44; Township v King, 84 Penn. St. 230; Thorogood v. Bryan, 8 C. B. 114, 129; Armstrong v. Railroad, L. R. 10 Exch. 47; Lockhart v. Lichtenthaler, 46 Penn. St 151; Stiles v. Geesey, 71 Pa. St. 439; 39 Iowa 523. The instructions given on the court's own motion were improper and erroneous. Stoher v. Railroad, 91 Mo. 518; King v. Railroad, 11 S.W. 563; Crumpley v. Railroad, 11 S.W. 244.
A. R. Taylor for respondent.
(1) The first proposition advanced for appellant is based on the old exploded doctrine of Thorogood v. Bryan, 8 C. B. 114. This case has been followed in a few cases in America and England, and, after a precarious existence in criticism, has been generally repudiated. Bennett v. Railroad, 36 N. J. L. 225; Hunt v. Railroad, 14 Mo.App. 166; Keitel v. Railroad, 28 Mo.App. 663; Chapman v. Railroad, 19 N.Y. 341; Barrett v. Railroad, 45 N.Y. 628; Thompson on Car. 284-289. (2) As to the contention by appellant, that the court usurped the province of the jury, by declaring it negligence to run a train of cars in the night time, and dark, across a public highway without headlight, near a city, it is submitted that the cases are numerous where the court has done this. Welsh v. Railroad, 72 Mo. 455; Reilly v. Railroad, 94 Mo. 604; Loeffler v. Railroad, 96 Mo. 270; Taylor v. Railroad, 86 Mo. 462; Barry v. Railroad, 98 Mo. 71. (3) The instruction on the measure of damages was correct. Crumpley v. Railroad, 98 Mo. 38; King v. Railroad, 98 Mo. 239.
OPINION
-- In this action, plaintiff sues to recover damages for the death of her husband, Charles Becke, who was a passenger in a public stage or hack, that was struck by a train of defendant, at a public crossing a short distance from Nevada, Missouri, thereby causing the said coach to be overturned and the said Becke injured so that he died within two days after the collision, from such injuries.
The plaintiff had judgment for $ 5,000, and the defendant appeals. The only errors urged as grounds for reversal are upon the instructions. They may all be considered upon instructions 1 and 3, given for plaintiff, and instruction A, refused for the defendant.
I. It is contended by counsel for the defendant that the court committed error in refusing to instruct the jury, that the plaintiff could not recover if the driver of the hack in which her husband was a passenger was guilty of negligence which contributed to the injuries which resulted in his death, and that the doctrine laid down in Thorogood v. Bryan, 65 Eng. C. L. Reports 8 M. G. & S. 114: "That a passenger upon the vehicle of a common carrier, who sustains an injury which is the result of the concurrent negligence of those in charge of such vehicle and third persons, is so identified with the former as to be chargeable with their negligence in an action against the latter and therefore only entitled to recover damages from his carrier," should govern the case. This doctrine, from the time it was first announced in Thorogood v. Bryan, in 1849, though afterwards followed by the English courts for a time (Armstrong v. Railroad, 10 L. R. Exch. 47) was continually subjected to adverse comment and criticism, until recently in the case of "The Bernina" (January 24, 1887 12 L. R. Prob. Div. 1887, p. 58) the whole question was re-examined and the authorities, English and American, reviewed by the court of appeals of England, and the doctrine condemned, and Thorogood v. Bryan and the cases that followed it cannot any longer be considered authority even in England. Lord Escher, M. R., thus sums up in the "Bernina" case:
The doctrine of Thorogood v. Bryan has received the sanction of some American courts, notably in Lockhart v Lichtenthaler, 46 Pa. 151, and others might be cited, but it has never been generally recognized or followed in this country; in fact the great weight of American authority is against it, and to this conclusion the supreme court of the United States arrived in the recent case of Little v. Hackett, 116 U.S. 366, 29 L.Ed. 652, 6 S.Ct. 391, after a thorough consideration of the subject and a review of the American authorities. That it is unsound in principle and against the weight of...
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