13 S.W. 714 (Mo. 1890), Soeder v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:13 S.W. 714, 100 Mo. 673
Opinion Judge:Brace, J.
Party Name:Soeder v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:B. Pike for appellant. A. R. Taylor for respondent.
Judge Panel:Brace, J. Barclay, J., not sitting.
Case Date:May 19, 1890
Court:Supreme Court of Missouri
 
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Page 714

13 S.W. 714 (Mo. 1890)

100 Mo. 673

Soeder

v.

The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

May 19, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay, Judge.

Affirmed.

B. Pike for appellant.

(1) Plaintiff's testimony did not make a prima facie case, and the demurrer to the evidence should have been sustained. Moore v. Railroad, 28 Mo.App. 622; Schutle v. Railroad, 97 Pa. St. 455. (2) The court committed error in the admission of the testimony offered by plaintiff against the objection of defendant. Stephens v. Railroad, 96 Mo. 207; Railroad v. Gower, 31 Am. & Eng. R. R. Cases, p. 168; Penn. Co. v. Roy, 102 U.S. 459. (3) The court committed error in refusing to give the instructions asked by defendant. Malone v. Howley, 46 Cal. 409; Baxter v. Roberts, 46 Cal. 187; Sizer v. Railroad, 7 Lansing [N. Y.] 67; Strohlendorf v. Rosenthal, 30 Miss. 674; Haskin v. Railroad, 65 Barb. 151; 31 Am. & Eng. R. R. Cases, 162; Darracutts v. Railroad, 31 Eng. & Am. R. R. Cases, 162; Spelman v. Iron Co., 56 Barb. [N. Y.] 131; Wood on Master & Servant, sec. 414, p. 791. (4) The court erred in giving on its own motion the instructions numbered 1 to 9 to the jury. Wood on Master & Servant, sec. 368, p. 744; Duffey v. Upton, 113 Mass. 544; LeBarron v. Ferry Co., 11 Allen [Mass.] 312; Wood on Master & Servant, sec. 382, p. 754.

A. R. Taylor for respondent.

(1) The evidence was amply sufficient to take the case to the jury upon the question as to the cause of the death being the defective rail. Kelly v. Railroad, 70 Mo. 607; Buesching v. Gas Co., 73 Mo. 230; Schlereth v. Railroad, 96 Mo. 514; Schultz v. Moon, 33 Mo.App. 340, 341. (2) The cases of Moore v. Railroad, 28 Mo.App. 622, and Schutle v. Railroad, 97 Pa. St. 455, if holding as contended by appellant, are in flat conflict with the Missouri cases cited above. But the case of Moore v. Railroad rested for authority solely upon Schutle v. Railroad, supra, and the latter case distinctly holds that there was no evidence of a negligent act by the defendant. In this case, the evidence of a very defective rail is conclusively shown, and the connection between the defective rail and the injury is as direct as circumstances may show. (3) There is a legal presumption that deceased was in the exercise of due care at the time of his death. "The law, out of regard to the instinct of self-preservation, presumes that deceased was in the exercise of due care." Flynn v. Railroad, 78 Mo. 212; Buesching v. Gas Co., 73 Mo. 230.

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

OPINION

[100 Mo. 675] Brace, J.

-- This is an action by the widow of William Soeder for damages for the death of her husband, alleged to have been caused by the negligence of the defendant, in whose employ the said Soeder was, at the time of his death, engaged in the discharge of his duties as a brakeman.

Three grounds of recovery are stated in the petition: First. That the accident was caused by the failure of defendant to have a sufficient number of men to manage and control the train; second, by reason of a defective [100 Mo. 676] brake upon the cars of said train, and, third, by the negligence of defendant in permitting its track to be, and remain, in a defective condition at the point where plaintiff's husband was run over and killed.

The first ground was practically abandoned on the trial; upon the second no evidence was introduced, and the case was tried, submitted and turned upon the third alleged ground of negligence. The plaintiff recovered judgment for thirty-five hundred...

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