13 S.W. 1053 (Mo. 1890), Becke v. Missouri Pacific Railway Co.

Citation:13 S.W. 1053, 102 Mo. 544
Opinion Judge:Brace, J.
Party Name:Becke v. The Missouri Pacific Railway Company, Appellant
Attorney:Bennett Pike for appellant. A. R. Taylor for respondent.
Judge Panel:Brace, J. Barclay, J., not sitting.
Case Date:June 30, 1890
Court:Supreme Court of Missouri
 
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Page 1053

13 S.W. 1053 (Mo. 1890)

102 Mo. 544

Becke

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

June 30, 1890

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.

Brace, J. Barclay, J., not sitting.

OPINION

[102 Mo. 545] Brace, J.

-- 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 [102 Mo. 546] 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.

"1. If you find from the evidence that plaintiff was the wife of Charles Becke when he died; and that on January 16, 1886, said Charles Becke was a passenger on a public stage or hack going from Montevallo to Nevada, in Missouri, and had no control over the driver thereof, or of the management of said hack; and that the hack in which said Becke was then such passenger was struck on said day by an engine of defendant at the crossing of the railroad and a traveled public road near Nevada, Missouri, and not within any city, and that in consequence of said collision said Becke received injuries from which he died at Nevada, Missouri, on or about January 18, 1886; and if you further find from the evidence that said collision directly resulted from, or was caused by, the omission of defendant's employes in charge of said engine to give any of the signals mentioned in instruction, numbered 2; and that said Charles Becke, at and prior to said collision, was himself exercising ordinary care to avoid injury and danger, then your verdict should be for plaintiff, and you should assess her damages at the sum of $ 5,000."

"3. If you find from the evidence the facts to be as mentioned in instruction, numbered 1, except as to the omission of signals, and find on that point that one of the signals mentioned therein and more particularly described in instruction, numbered 2...

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