13 S.W. 817 (Mo. 1890), Murray v. Missouri Pacific Railway Co.

Citation:13 S.W. 817, 101 Mo. 236
Opinion Judge:Black, J.
Party Name:Murray v. The Missouri Pacific Railway Company, Appellant
Attorney:Bennett Pike and Henry G. Herbel for appellant. A. R. Taylor for respondent.
Case Date:June 02, 1890
Court:Supreme Court of Missouri

Page 817

13 S.W. 817 (Mo. 1890)

101 Mo. 236



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 2, 1890

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.


Bennett Pike and Henry G. Herbel for appellant.

(1) The court erred in giving the instructions asked by plaintiff. Milburn v. Railroad, 86 Mo. 109; Stepp v. Railroad, 85 Mo. 226; Kelly v. Railroad, 75 Mo. 141; Smith v. Hardesty, 31 Mo. 412; Hurt v. Railroad, 94 Mo. 256; Dowling v. Allen, 88 Mo. 299; Railroad v. State, 31 Md. 357; s. c., 100 Am. Dec. 71; Henze v. Railroad, 71 Mo. 638; Isaacs v. Skrainka, 95 Mo. 517; Mathiason v. Mayer, 90 Mo. 585. (2) The verdict is against and unsupported by the evidence, and should, therefore, have been set aside.

A. R. Taylor for respondent.

(1) The point that the first instruction given for plaintiff, as to the burden of proof, is erroneous is clearly untenable. Petty v. Railroad, 88 Mo. 306; Donovan v. Railroad, 89 Mo. 147; Thorpe v. Railroad, 89 Mo. 655. (2) Whilst it may be true, that, as to the value of services involving science and skill, an opinion of an expert, as to value, is necessary proof, yet in services commonly rendered by all mankind, such as nursing the sick, one man is supposed to know as much on the subject as another. In the language of this court, the value of such services "may be measured by the experience and judgment of the jury," without proof of value. Parsons v. Railroad, 94 Mo. 296; Nagel v. Railroad, 75 Mo. 666. (3) The criticism of the third instruction given for plaintiff is wholly without merit. If plaintiff was free from fault, any negligent act of defendant directly contributing to plaintiff's injury renders defendant liable. McDermott v. Railroad, 87 Mo. 301. (4) Even if there was no requirement in either the third or fourth instruction, that plaintiff should have been in the exercise of ordinary care, still as the question of plaintiff's care was submitted to the jury fully in defendant's instruction number 2, and as the instructions are to read as a whole, this could be no error. Owens v. Railroad, 95 Mo. 181, overruling Sullivan v. Railroad, 88 Mo. 182, followed by Dougherty v. Railroad, 97 Mo. 661.


[101 Mo. 238] Black, J.

-- This is a personal damage suit. Plaintiff was a driver of a hose carriage connected with the fire department of the city of St...

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