16 S.W. 1049 (Mo. 1891), Lemay v. The Missouri Pacific Railway Company

Citation:16 S.W. 1049, 105 Mo. 361
Opinion Judge:Sherwood, P. J.
Party Name:LeMay v. The Missouri Pacific Railway Company, Appellant
Attorney:McDougal & Robinson for appellant. Warner, Dean & Hagerman for respondent.
Judge Panel:Sherwood, P. J. Barclay, J., absent.
Case Date:June 29, 1891
Court:Supreme Court of Missouri
 
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Page 1049

16 S.W. 1049 (Mo. 1891)

105 Mo. 361

LeMay

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

June 29, 1891

April, 1891

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

Affirmed.

McDougal & Robinson for appellant.

(1) The defendant's objection to the introduction of any evidence should have been sustained. The petition "should have set forth, with a reasonable degree of particularity, the acts which it was intended to be shown were negligently done." Gurley v. Railroad, 93 Mo. 451. This was not done. The petition only charged that deceased "was by the carelessness, negligence and unskilfulness of defendant's officers, agents, servants and employes, while running, conducting and managing certain cars, run over by two of said cars." "A petition with such a general allegation is worthless." Gurley v. Railroad, 93 Mo. 450. (2) Under the evidence in the case the court should have instructed the jury to find for the defendant. Plaintiff was a trespasser on defendant's track, and was guilty of contributory negligence. He had no right to be there. (3) The court erred in giving plaintiff's instruction, numbered 3. Said instruction was faulty in leaving it to the jury to find in a general way what constituted negligence. Goodwin v. Railroad, 75 Mo. 73; Ravenscraft v. Railroad, 27 Mo.App. 617; Gurley v. Railroad, 93 Mo. 445; Wooley v. Railroad, 5 West. Rep. 667. (4) The court erred in giving plaintiff's instruction, numbered 6. There was no testimony tending to prove that any officer, agent or employe of defendant was aware of the boatman walking on the track, and it was not the defendant's duty to ascertain this fact. It was a matter about which the defendant could not be negligent. McLaren v. Railroad, 8 Am. & Eng. R. R. Cases, 217; note p. 124, Wright v. Railroad, 2 Am. & Eng. R. R. Cases, 121; note p. 438, Davis v. Railroad, 15 Am. & Eng. R. R. Cases, 424; Railroad v. Brinson, 19 Am. & Eng. R. R. Cases, 42; Railroad v. State, 19 Am. & Eng. R. R. Cases, 83, p. 88, note 90. "Except at crossings, where the public have a right of way, the man who steps his foot upon a railroad track does so at his peril. The company has not only a right, but it is exclusive at all times and for all purposes." Mulherrin v. Railroad, 31 P. F. Smith, 366; Railroad v. Norton, 12 Harris, 465; Railroad v. Brinson, 19 Am. & Eng. R. R. Cases, 42, p. 48, note 73.

Warner, Dean & Hagerman for respondent.

(1) Plaintiff's petition states a cause of action and the objection of defendant to the introduction of any evidence was properly overruled. Garner v. Railroad, 34 Mo. 235; McPheeters v. Railroad, 45 Mo. 22; Mack v. Railroad, 77 Mo. 234; Schneider v. Railroad, 75 Mo. 295; Sullivan v. Railroad, 97 Mo. 113. (2) The deceased was not a trespasser and the court did not err in giving plaintiff's instruction, numbered 6. Troy v. Railroad, 34 Am. & Eng. R. R. Cases, 18; Davis v. Railroad, 15 Am. & Eng. R. R. Cases, 431. (3) Even if the deceased was a trespasser, under the circumstances of this case the defendant was bound to exercise ordinary care to discover him on the track. Williams v. Railroad, 96 Mo. 281; Guenther v. Railroad, 95 Mo. 286; St. Louis v. Crosnoe, 37 Am. & Eng. R. R. Cases, 313; Kay v. Railroad, 65 Pa. St. 273; Harriman v. Railroad, 12 N.E. 451; Cook v. Railroad, 67 Ala. 533; Railroad v. Donovan, 4 S. Rep. 142; Mizenor v. Railroad, 4 S.E. 242. (4) The court did not err in giving plaintiff's third instruction. Instructions are sufficient, if taken as a whole they fairly state the law. Moore v. Sanborn, 42 Mo. 490; Karle v. Railroad, 55 Mo. 476; Edwards v. Carey, 60 Mo. 572. (5) Even if instruction, numbered 3, given for plaintiff is subject to the criticism, appellant is in no position to complain as his own instructions contain the same principle. Hazell v. Bank, 95 Mo. 66; Smith v. Culligan, 74 Mo. 389; McGonigle v. Daugherty, 71 Mo. 259.

Sherwood, P. J. Barclay, J., absent.

OPINION

[105 Mo. 364] Sherwood, P. J.

Action by the widow of Frank LeMay to recover $ 5,000 for the death of her husband. In her petition she charged that her husband was on one of the defendant's railroad tracks by license...

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