16 S.W. 411 (Mo. 1891), Corcoran v. The St. Louis, Iron Mountain and Southern Railway Company

Citation:16 S.W. 411, 105 Mo. 399
Opinion Judge:Macfarlane, J.
Party Name:Corcoran v. The St. Louis, Iron Mountain and Southern Railway Company, Appellant
Attorney:Bennett Pike for appellant. A. & J. F. Lee for respondent.
Case Date:May 19, 1891
Court:Supreme Court of Missouri
 
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Page 411

16 S.W. 411 (Mo. 1891)

105 Mo. 399

Corcoran

v.

The St. Louis, Iron Mountain and Southern Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 19, 1891

April, 1891

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

Reversed.

Bennett Pike for appellant.

(1) The demurrer at the close of plaintiff's evidence should have been sustained because of the absence of causal connection between the acts of negligence charged in the petition or proved, and the injuries alleged to have been sustained by plaintiff. Wyatt v. Railroad, 6 Best & Smith, 709; Wharton on Negligence, secs. 134, 138 and 200; Railroad v. Fich, 34 Am. & Eng. R. R. Cases, 549; Clark v. Railroad, 39 Mo. 619; Henry v. Railroad, 76 Mo. 293; Brown v. Railroad, 20 Mo.App. 222; Stillson v. Railroad, 67 Mo. 671; Jennings v. Railroad, 11 S.W. 999; Hudson v. Railroad, 14 S.W. 15. (2) The demurrer to the plaintiff's evidence should have been sustained on account of his contributory negligence. Stillson v. Railroad, 67 Mo. 671; Lewis v. Railroad, 38 Md. 588; Railroad v. Pinchin, 31 Am. & Eng. R. R. Cases (S. C. Ind.) 592; Smith v. Railroad, 55 Iowa 33; O'Mara v. Railroad, 18 Hun, 192. (3) Plaintiff's instruction was clearly erroneous, because it submitted to the jury the questions whether the obstruction of the street by the cars of defendant, the failure to have the cars manned with experienced brakemen, or the absence of the watchman at the crossing was the direct and proximate cause of the injury. Henry v. Railroad, 76 Mo. 293; Jennings v. Railroad, 11 S.W. 999, and cases cited first point, supra. (4) The court erred in admitting the ordinances offered, because they were immaterial and irrelevant, and had no tendency to show any negligence on the part of the defendant. Their introduction had a tendency to mislead the jury, as the violation of them by defendant showed no causal connection between the happening of the accident and the alleged injuries of plaintiff. See cases cited under first point. (5) The verdict is grossly excessive, and is manifestly the result of prejudice and bias. Sawyer v. Railroad, 37 Mo., and cases cited.

A. & J. F. Lee for respondent.

(1) The defendant's demurrer to the evidence was properly refused, because the testimony distinctly showed the alleged negligence of defendant was the cause of plaintiff's injuries; if not conclusively, the jury could reasonably have inferred it to be so from the testimony, and, where such inference can be drawn, the question of proximate cause is a question for the jury. 1 Shearman & Redfield on Negligence [Ed. 1888] p. 3, sec. 3; p. 25, sec. 25; p. 67, sec. 55; p. 31, sec. 29; Weber v. Railroad, 100 Mo. 200; Karle v. Railroad, 55 Mo. 476; Kine v. Trans. Co., 90 Mo. 314; Railroad v. Kellogg, 94 U.S. 475; Clemens v. Railroad, 53 Mo. 366; Railroad v. Pinder, 53 Ill. 417. (2) Defendant's demurrer to the evidence was properly refused because plaintiff was not guilty of any contributory negligence. 2 Shearman & Redfield on Negligence [Ed. 1888] p. 287, sec. 479; Parsons v. Railroad, 94 Mo. 286; Railroad v. Fitzpatrick, 35 Md. 32; Wilkins v. Railroad, 101 Mo. 106; Maus v. City, 101 Mo. 613; Tetherow v. Railroad, 98 Mo. 84; Bergman v. Railroad, 88 Mo. 678; Leslie v. Railroad, 88 Mo. 50. (3) Plaintiff's instruction was correct because the question of proximate cause upon the...

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