13 S.W. 806 (Mo. 1890), Kellny v. The Missouri Pacific Railway Co.

Citation:13 S.W. 806, 101 Mo. 67
Opinion Judge:Brace, J.
Party Name:Kellny v. The Missouri Pacific Railway Company, Appellant
Attorney:Henry G. Herbel for appellant. Wm. C. & J. C. Jones for respondent.
Judge Panel:Brace, J. Ray, C. J., and Black, J., concurring; Sherwood, J., concurs in the result; Barclay, J., not sitting.
Case Date:May 19, 1890
Court:Supreme Court of Missouri
 
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Page 806

13 S.W. 806 (Mo. 1890)

101 Mo. 67

Kellny

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

May 19, 1890

April, 1890

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

Reversed and remanded.

Henry G. Herbel for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence, interposed at the close of plaintiff's evidence in chief. Spiva v. Coal Co., 88 Mo. 73, and authorities cited under second point. (2) The court erred in overruling defendant's motion for a new trial for the reason that the evidence does not support, but is contrary to, the verdict. State v. Hunt, 91 Mo. 490; Powell v. Railroad, 76 Mo. 82; Mathieson v. Mayer, 90 Mo. 585; Stepp v. Railroad, 85 Mo. 233; Braxton v. Railroad, 77 Mo. 458; Kendrick v. Railroad, 81 Mo. 521; Waldheir v. Railroad, 71 Mo. 518; Gurley v. Railroad, 93 Mo. 450; Rafferty v. Railroad, 91 Mo. 37; Peterson v. Case, 18 Am. & Eng. R. R. Cas. 581; Bene v. Jeantet, 129 U.S. 683; Maloy v. Railroad, 84 Mo. 276; Muldoney v. Railroad, 39 Ia. 622. (3) The court erred in overruling the motion for a new trial, because the verdict is opposed to physical laws, and manifests prejudice and passion on the part of the jury. Spohn v. Railroad, 87 Mo. 74; Garrett v. Greenwall, 92 Mo. 125; Whitsett v. Ransom, 79 Mo. 260; State v. Woolaver, 77 Mo. 104; Lockwood v. Railroad, 6 Am. & Eng. R. R. Cas. 160; Stoher v. Railroad, 91 Mo. 517; O'Donnell v. Railroad, 7 Mo.App. 193. (4) The verdict is excessive, and manifests passion or prejudice on the part of the jury.

Wm. C. & J. C. Jones for respondent.

(1) The jury found specially that defendant's engine struck the wagon and ran over plaintiff; also that the train was running in excess of six miles per hour. (2) The injury was caused by the excessive rate of speed, and plaintiff is entitled to recover on that ground. Robertson v. Railroad, 84 Mo. 122; Bowman v. Railroad, 85 Mo. 539; Dunn v. Railroad, 21 Mo.App. 199; Kendrick v. Railroad, 81 Mo. 522; Persinger v. Railroad, 82 Mo. 199. Proof of the omission of the statutory duty and of the injury make a prima facie case. Turner v. Railroad, 78 Mo. 578; Alexander v. Railroad, 76 Mo. 497; Keim v. Transit Co., 90 Mo. 323. See, also, Kelly v. Railroad, 88 Mo. 548, and Taylor v. Railroad, 83 Mo. 390; O'Connor v. Railroad, 94 Mo. 157. Running of cars in populated districts at a rate in excess of that prescribed by the ordinance is gross negligence. Eswin v. Railroad, 96 Mo. 294; Reilly v. Railroad, 94 Mo. 600.

Brace, J. Ray, C. J., and Black, J., concurring; Sherwood, J., concurs in the result; Barclay, J., not sitting.

OPINION

[101 Mo. 70] Brace, J.

-- Action for damages for personal injuries; verdict and judgment for plaintiff for five thousand dollars. Defendant appeals.

The petition charged negligence in defendant's employes in managing and operating the train which caused the injury, specifying failure to ring the bell and running at a greater rate of speed than six miles an hour, in violation of city ordinance. On the first act of alleged negligence no evidence was given. The answer was general denial, and a plea of contributory negligence.

The accident happened in the city of St. Louis on the levee between Christy avenue and Morgan streets. The evidence for the plaintiff tended to prove that the plaintiff was a rag peddler; that in the course of his business he was pursuing his way in a one-horse wagon along the levee in the city of St. Louis, which lies in a general direction north and south, and on which the defendant's track was laid, and on which it was operating its train. He was going north on the levee; near the corner of Christy avenue and the levee, he found the space on each side of the track for a distance of about fifty feet occupied by wagons, leaving an open way between them occupied by defendant's track as the only way for him to pursue his journey unobstructed. He entered this gang-way between

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the wagons, drove along it, the east wheels of his wagon on the inside of the west rail of the track, and his west wheels on the outside, a distance of about forty or fifty feet when the hind wheel of his wagon was struck by the defendant's engine drawing a train of freight cars going north on its track, and the plaintiff was thrown out of his wagon, onto the west rail of the track in front of or under the engine, which passed over him crushing his left arm and elbow so that his arm had to be amputated, bruising one of his legs, inflicting a cut over one of his eyes, and several [101 Mo. 71] contusions on his back. That at the time of the collision the train was going at the rate of about fifteen miles an hour; that it did not stop but passed on at the same rate of speed. That a train...

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