14 S.W. 873 (Mo. 1890), Walsh v. Missouri Pacific Railway Co.

Citation:14 S.W. 873, 102 Mo. 582
Opinion Judge:Black, J.
Party Name:Walsh et al. v. The Missouri Pacific Railway Company, Appellant
Attorney:B. Pike for appellant. John M. Dickson for respondents.
Case Date:December 15, 1890
Court:Supreme Court of Missouri
 
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Page 873

14 S.W. 873 (Mo. 1890)

102 Mo. 582

Walsh et al.

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

December 15, 1890

Rehearing Denied 102 Mo. 584 at 589.

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Affirmed.

B. Pike for appellant.

(1) The demurrer to the evidence by defendant should have been sustained, and the refusal thereof was error. Moore v. Railroad, 28 Mo.App. 622; Shertle v. Railroad, 97 Pa. St. 450; Railroad v. Strohm, 96 N.Y. 305; Curtis v. Railroad, 18 N.Y. 541; Filer v. Railroad, 49 N.Y. 45; Clark v. Brown, 18 Wend. 229; Lincoln v. Railroad, 23 N.Y. 425, 435; Williams v. Railroad, 9 S.W. 577. (2) The instructions given by the court, at the instance of plaintiffs, and on his own motion, were erroneous. See cases cited under point 1.

John M. Dickson for respondents.

The instruction for nonsuit at the close of plaintiffs' case was properly refused, and the case properly submitted to the jury. Wharton's Law of Negligence, secs. 420, 421; Ireland v. Plankroad Co., 3 Kerr, 533; Condy v. Railroad, 85 Mo. 85; Frick v. Railroad, 75 Mo. 601; Noeninger v. Vogt, 88 Mo. 592; Wilson v. Board of Ed., 63 Mo. 140; Kelly v. Railroad, 70 Mo. 609; Buesching v. Gaslight Co., 73 Mo. 219; Donahue v. Railroad, 91 Mo. 360; Alexander v. Railroad, 76 Mo. 494. The non-compliance on the part of a railroad company with statutory regulations in running its trains is prima facie evidence of negligence. Holman v. Railroad, 62 Mo. 564; Wallace v. Railroad, 76 Mo. 82; Branton v. Railroad, 75 Mo. 73; Keller v. Railroad, 75 Mo. 138; Frick v. Railroad, 75 Mo. 612; Brick Co. v. Railroad, 18 Mo.App. 626.

OPINION

[102 Mo. 584] Black, J.

-- The plaintiffs are the minor children of Patrick Walsh. They prosecute this suit by their next friend to recover damages for the death of their father, who, it is alleged, was injured by the negligence of defendant, and that he died from the injuries so received.

The cause

Page 874

of action is based upon an alleged negligent violation of an ordinance of the city of St. Louis, limiting the rate of speed of cars and locomotives propelled by steam to not exceeding six miles per hour.

The petition states that Walsh was in bed at a house near the corner of the Levee and Poplar street; that an engine and cars, operated by defendant's servants at a speed exceeding six miles an hour, ran off the track against the walls of the house aforesaid, whereby the walls were overthrown and fell upon Walsh; that Walsh received internal injuries in the stomach and bowels by...

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