Clay v. Chicago & Alton R.R. Co.

Citation17 Mo.App. 629
PartiesROBERT CLAY, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant.
Decision Date05 May 1885
CourtCourt of Appeal of Missouri (US)

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Reversed and remanded.

R. H. KERN, for the appellant.

C. P. & J. D. JOHNSON, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff was employed by persons other than the defendant to unload jointly with others some freight, from one of the defendant's cars in the defendant's freight yard. While so employed a heavy box fell upon him causing him serious injuries.

The petition states that the injury was caused by the defendant's servants, in negligently propelling the car in which the plaintiff was against another car, with great velocity and force, thereby throwing down against and upon the plaintiff certain parts of the freight in said car.

The answer of the defendant contained a general denial, and the following averment of contributory negligence; “That the injury complained of was caused solely by the plaintiff's negligence, in this that he was advised by the defendant's agents that the car in which he received said injury was to be moved, and was warned by them to leave said car, but declined to do so, and in consequence thereof received the aforesaid injury.”

On the trial of the cause the plaintiff offered evidence tending to show that he was employed by the consignees to unload this freight, but that the work of unloading cars was new to him. That he and others engaged in unloading this car had stopped for dinner, the others leaving the car but he remaining inside. That while he was eating his dinner a locomotive was hitched to the car and began to move it. That he heard no warning or notice given before the car was moved, and, when it began to move, he walked to one end of the car and while standing there was injured seriously, by a heavy box of freight falling upon him. That this freight was thrown against him by a jar, which was caused by this car being thrown against other cars, in switching it, with considerable force.

The defendant offered testimony tending to show that the car was switched with a force of men usually employed on such occasions and was propelled at a moderate rate of speed. That it is customary to warn people who are in the cars to get out of them before they are switched; that this was done in the present instance, although the plaintiff may not have heard the warning; that the injury would have been avoided if the plaintiff had remained where he was eating his dinner. This was substantially all the evidence in the case, besides evidence tending to show the extent of the plaintiff's damages. There was a verdict for the plaintiff.

The defendant assigns as errors: That the petition does not state facts sufficient to constitute a cause of action; that there was no evidence of negligence on the part of the defendant, to support the verdict; and that the court misdirected the jury.

The first of these objections is untenable; the petition would have been held good even on demurrer, and was unquestionably sufficient after verdict.-- Dougherty v. Railroad Co., 9 Mo. App. 486. Neither are we prepared to say that upon the whole testimony the defendant was entitled to a verdict as a matter of law. There is certainly some evidence tending to show that the plaintiff was not warned to leave the car, as it is customary to warn people similarly situated. This testimony went to the jury without objection, and we believe that the defendant should not be heard to say...

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10 cases
  • Sullivan v. Hannibal & St. Joseph R.R. Co.
    • United States
    • Missouri Supreme Court
    • 31 Octubre 1885
    ...cured by the fact that correct instructions accompanied them, as such erroneous instructions may mislead the jury.” See also Clay v. Railroad, 17 Mo. App. 629, and Statev. McNally, 87 Mo. 644. We also append the following cases from the Illinois court in support of our own ruling, viz: Ry. ......
  • Barkley v. Missouri Pacific Railway Co.
    • United States
    • Missouri Supreme Court
    • 26 Noviembre 1888
    ... ... Talbot, 4 Mo ... 279; Hickman v. Griffin, 6 Mo. 37; Clay v ... Railroad, 17 Mo.App. 629; Evans v. Railroad, 16 ... Mo.App ... ...
  • Bradley v. Chicago, Milwaukee & St. Paul Railway Company
    • United States
    • Missouri Supreme Court
    • 23 Marzo 1897
    ... ...           Appeal ... from the Clay Circuit Court. -- Hon. E. J. Broaddus, Judge ...           ... Reversed and remanded ... ...
  • Dunn v. Cass Ave. & Fair Grounds Ry. Co.
    • United States
    • Missouri Court of Appeals
    • 9 Marzo 1886
    ...Fortune v. Railroad, 10 Mo. App. 252; Gerren v. Railroad, 60 Mo. 409; Insurance Co. v. St. Mary's Seminary, 52 Mo. 488-492; Clay v. Railroad, 17 Mo. App. 629. If the plaintiff's son was a trespasser on the defendant's car, then subdivision eight of section two of the ordinance had no applic......
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