17 S.W. 489 (Mo. 1891), Evans v. Interstate Rapid Transit Ry. Co.

Citation:17 S.W. 489, 106 Mo. 594
Opinion Judge:Black, J.
Party Name:Evans et al. v. The Interstate Rapid Transit Railway Company, Appellant
Attorney:Warner, Dean & Hagerman for appellant. John W. Beebe, Gates & Wallace and H. F. Simrall for respondents.
Judge Panel:Black, J. Barclay, J., absent.
Case Date:June 29, 1891
Court:Supreme Court of Missouri
 
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Page 489

17 S.W. 489 (Mo. 1891)

106 Mo. 594

Evans et al.

v.

The Interstate Rapid Transit Railway Company, Appellant

Supreme Court of Missouri, First Division

June 29, 1891

Appeal from Clay Circuit Court. -- Hon. J. M. Sandusky, Judge.

Reversed and remanded.

Warner, Dean & Hagerman for appellant.

(1) Upon the consolidation of the defendant company with the "Kansas City & Wyandotte Railway & Tunnel Company," "The Riverview Railway Company" and "The Brighton & Chelsea Park Railway Company," the defendant railway company, ceased to exist as a corporation, its power to sue and capacity to be sued by that name was extinguished, and a new corporation was created. And upon the suggestion and proof of consolidation of the defendant railway company with the above-named railway companies, this action, which had been commenced against such company before its consolidation, should have been abated. State ex rel. v. Railroad, 99 Mo. 30, and cases cited; Railroad v. Smith, 40 Kan. 192; Railroad v. Fryer, 11 Am. & Eng. R. R. Cases (Texas) 325. (2) Upon the suggestion and proof of consolidation of the defendant railway company with the other railway companies, the cause then stood without a defendant, and the court was, therefore, without jurisdiction to proceed further with the cause, and the judgment rendered was void. See cases just above cited, especially those from Texas and Kansas. (3) Plaintiff's instruction, numbered 1, is erroneous in this: First. It is an abstract proposition of law, not bearing on the only act of negligence, if any, which caused the accident, namely, the moving of the train before deceased got on it. Second. It is clearly misleading in that it called the attention of the jury away from the act of negligence, if any, which was the proximate cause of the injury. Third. It makes the defendant the insurer of the safety of the structure, when the law only requires that the defendant exercise either ordinary care or the highest degree of care in maintaining the structure in a reasonably safe condition. Lemon v. Chanslor, 68 Mo. 341; Hipsley v. Railroad, 88 Mo. 353; Waller v. Railroad, 83 Mo. 608; Railroad v. Love, 10 Ind. 554; Railroad v. Froesch, 68 Ill. 551; Hutchinson on Carriers, secs. 498-501, inclusive. (4) Plaintiff's instruction, numbered 2, was erroneous. (5) Plaintiff's third instruction is illogical and misleading. (6) Plaintiff's instruction, numbered 5, is erroneous. (7) The court should have given instruction, numbered 1, asked by defendant, because of the suggestion and proof of the consolidation of the defendant with other companies. (8) Boarding the train in question by the deceased, the same being on an elevated structure and a rapid transit railway, while in motion, was an act of contributory negligence on the part of the deceased, so as to preclude a recovery in this case, and the court should have given defendant's instruction, numbered 4. Solomon v. Railroad, 104 N.Y. 437; Harvey v. Railroad, 116 Mass. 269; Weber v. Cable Co., 100 Mo. 194; Railroad v. Scates, 9 Cent. Law Jour. (Sup. Ct. Ill.) 167-9; Nelson v. Railroad, 68 Mo. 593; Hutchinson on Carriers, sec. 641, p. 505, and cases cited; Thompson's Carriers of Passengers, 266-8, and cases cited; Railroad v. Jones, 95 U.S. 439. (9) Instruction, numbered 9, asked by the defendant, should have been given, because the record shows that there was no evidence in the case tending to show that the railway in question was improperly or negligently constructed.

John W. Beebe, Gates & Wallace and H. F. Simrall for respondents.

(1) The court did not err in overruling the defendant's motion to abate the suit. First. There...

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