15 S.W. 80 (Mo. 1891), McIntosh v. Missouri Pac. Ry. Co.

Citation:15 S.W. 80, 103 Mo. 131
Opinion Judge:Barclay, J.
Party Name:McIntosh et al. v. The Missouri Pacific Railway Company, Appellant
Attorney:Adams & Buckner for appellant. Warner, Dean & Hagerman for respondents.
Case Date:January 19, 1891
Court:Supreme Court of Missouri
 
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Page 80

15 S.W. 80 (Mo. 1891)

103 Mo. 131

McIntosh et al.

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

January 19, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Adams & Buckner for appellant.

(1) The defendant's instruction in the nature of a demurrer to the evidence should have been given. Jackson v. Railroad, 14 S.W. 54; Railroad v. Gowen, 85 Tenn. 465; Railroad v. Hussen, 101 Penn. St. 1; Scott v. Railroad, 14 Oregon, 211; Railroad v. Plunkett, 25 Kan. 188; Day v. Railroad, 42 Mich. 523; Railroad v. Johnson, 102 Ind. 352; Lathrop v. Railroad, 150 Mass. --; Boyle v. Railroad, 23 N.E. 827. (2) The petition does not state a cause of action, in that it fails to allege that the deceased minor son of plaintiffs was, at the time of his death, unmarried, and defendant's motion in arrest of judgment should have been sustained. Barker v. Railroad, 91 Mo. 86; Dulaney v. Railroad, 21 Mo.App. 597; McNamara v. Slavens, 76 Mo. 329; Railroad v. Hine, 25 Ohio St. 629.

Warner, Dean & Hagerman for respondents.

(1) The right of the plaintiffs to recover in this case rests upon the broad basis that the company knew of this dangerously loaded car, knew that the switchman was inexperienced, and yet ordered and directed him to make the unusually dangerous coupling without warning him of the danger. Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298; Moore v. Railroad, 85 Mo. 588; Stephens v. Railroad, 96 Mo. 270; Ross v. Railroad, 112 U.S. 377. The cases cited by the appellant in the first point of their brief are not decisive of the questions in this case. (2) The court did not err in overruling defendant's motion in arrest of judgment. The testimony conclusively proved that plaintiffs' son was a minor and unmarried. The demurrer to the evidence admits the truth of that fact. If the court below had sustained the motion in arrest, it would instantly have allowed plaintiffs to amend their petition to conform to the facts which were proved, under the statute of jeofails (R. S. 1889, secs. 2098, 2100, 2101), and under these sections this court could and should, in furtherance of justice, if deemed at all necessary, even at the present time, permit such amendment.

OPINION

Page 81

[103 Mo. 132] Barclay, J.

The plaintiffs are the parents of John...

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