Ridenhour v. Kansas City Cable Railway Co.
Decision Date | 02 June 1890 |
Citation | 13 S.W. 889,102 Mo. 270 |
Parties | Ridenhour v. The Kansas City Cable Railway Company, Appellant |
Court | Missouri Supreme Court |
Rehearing Denied 102 Mo. 270 at 283.
Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.
Affirmed.
Johnson & Lucas for appellant.
(1) The demurrer ought to have been sustained. There was no evidence to sustain the issues presented by the pleadings. Mays v Pryce, 95 Mo. 613; Ischer v. Bridge Co., 95 Mo 261; Harty v. Railroad, 95 Mo. 368; Gurley v. Railroad, 93 Mo. 450; Schlereth v. Railroad, 96 Mo. 509; Clotsworthy v. Railroad, 80 Mo. 220; Nelson v. Railroad, 68 Mo. 595; Current v. Railroad, 86 Mo. 66. (2) Plaintiff's first instruction ought not to have been given. First. An instruction is improper which submits an issue to the jury when there is no evidence to support it. Harty v. Railroad, 95 Mo. 368; Bowen v. Railroad, 75 Mo. 458. Second. The instruction is calculated to mistake or confuse the jury, and should not have been given. Donohue v. Railroad, 83 Mo. 560. Third. It ignores a material issue presented by the pleadings. Budd v. Hoffheimer, 52 Mo. 297; Bank v. Armstrong, 62 Mo. 59; Jackson v. Boyles, 67 Mo. 609; Crews v. Lackland, 67 Mo. 619; Greer v. Parker, 85 Mo. 107; Glass v. Gelvin, 80 Mo. 302. Fourth. It ignores the question of contributory negligence. Gilson v. Railroad, 76 Mo. 286. Fifth. It inconsistently assumes a state of facts that would preclude a recovery, and concludes that such facts will authorize a recovery. (3) Second instruction is in conflict with the decision of this court in Erwin v. Railroad, 9 S.W. 579; McCarty v. Railroad, 92 Mo. 541; Ostertay v. Railroad, 64 Mo. 424; Railroad v. Declaney, 82 Ill. 198; Plumley v. Birge, 124 Mass. 57; Shearman & Redfield on Neg. [4 Ed.] p. 108, sec. 73; Dowd v. Chicopee, 116 Mass. 96. (4) Defendant's first instruction ought to have been given. Schlereth v. Railroad, 96 Mo. 509.
J. F. Waters and Crittenden, McDougal & Stiles for respondent.
(1) The plaintiff was a competent witness. The trial court upon seeing, hearing and observing the witness found that he was capable "of receiving just impressions of the facts respecting which he was examined" and "of relating them truly," and thereupon admitted his testimony. This does not fully appear in appellant's abstract; but upon such an examination by the trial judge this plaintiff was held to be a competent witness, and that finding "is not subject to review in this court." State v. Jefferson, 77 Mo. 136, 138; State v. Scanlan, 58 Mo. 204. (2) The petition stated a cause of action. The negligence charged was that defendant suddenly started its train while plaintiff was in the act of leaving the car. The train did not come to a full stop; it came almost to a standstill, and then suddenly started with a violent jerk which threw plaintiff off. There was therefore no substantial variance between the allegation and proof. Werner v. Railroad, 81 Mo. 368; Leslie v. Railroad, 88 Mo. 50; Litchfield Coal Co. v. Taylor, 81 Ill. 590. Olmstead v. Smith, 87 Mo. 602, 607. "No such showing was made, and it is too late to complain here." Bank v. Wills, 79 Mo. 275, 276, and cas. cit. (3) The court below committed no error in either giving or refusing instructions.
-- Action by plaintiff, through his next friend, to recover $ 25,000 for personal injuries received by him on the seventeenth day of April, 1886, in alighting from a train of defendant's cars near Holmes street, in Kansas City, Missouri. The claim of the plaintiff was that he was permanently injured by the cars running over his left arm, bruising and lacerating the same. The verdict of the jury was for the sum of $ 8,500. The answer of the defendant was a general denial, as well as a plea of contributory negligence. There was testimony to sustain the theory of the plaintiff's case, and testimony of a contrary effect. At the time of the accident the plaintiff was between nine and ten years of age.
The petition, omitting formal parts, is as follows:
The answer is a general denial, and a plea of contributory negligence; and the reply, a general denial of the new matter in the answer.
As there is no dispute as to the correctness of defendant's abstract as to the evidence adduced, that evidence will be accepted and inserted here (except that portion which relates to the plaintiff's competency, which will be sufficiently noticed in the opinion). That evidence is the following:
The plaintiff, Albert Ridenhour, testified:
On cross-examination, witness testified: ...
To continue reading
Request your trial