18 S.W. 846 (Mo. 1891), Guenther v. St. Louis, I.M. & S. Ry. Co.

Citation:18 S.W. 846, 108 Mo. 18
Opinion Judge:Thomas, J.
Party Name:Guenther v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:H. S. Priest for appellant. Rassieur & Schnurmacher for respondent.
Case Date:December 22, 1891
Court:Supreme Court of Missouri
 
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Page 846

18 S.W. 846 (Mo. 1891)

108 Mo. 18

Guenther

v.

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

Supreme Court of Missouri, Second Division

December 22, 1891

Appeal from St. Louis City Circuit Court. -- Hon. J.E. Withrow, Judge.

Affirmed.

H. S. Priest for appellant.

(1) The demurrers to the evidence should have been sustained. First. The deceased was a trespasser upon the defendant's tracks, and its servants owed him no duty except that of not wilfully injuring him, and of this there is no evidence. Barker v. Railroad, 98 Mo. 50; R. S. 1889, sec. 2611. Second. The deceased was guilty of contributory negligence, which continued down to the very moment of the collision, and was the most conspicuous cause in its production. The inexorable principle, however little the impression it makes in some cases, is that if the injured party could by the exercise of ordinary care have avoided the results of the defendant's negligence he cannot recover. Schaabs v. Wheel Co., 56 Mo. 173; Smith v. Railroad, 61 Mo. 590; Fletcher v. Railroad, 64 Mo. 490; Lenix v. Railroad, 76 Mo.; Hixon v. Railroad, 80 Mo. 335; Bell v. Railroad, 86 Mo. 612; Kelly v. Railroad, 88 Mo. 534; Yancey v. Railroad, 93 Mo. 433; Thompson, Negligence, 1149; Railroad v. Wynn, 19 Ga. 440; Morris v. Railroad, 4 Zab. 268; Mackey v. Railroad, 27 Barb. 528; Sheffield v. Railroad, 21 Barb. 339; Railroad v. Kean, 28 Am. & Eng. R. R. Cases, 580; Yniester v. Railroad, 29 Am. & Eng. R. R. Cases, 297; Nichol's Adm'r v. Railroad, 25 Rep. 172; O'Brien v. McClinchy, 68 Mo. 552; Dlauhi v. Railroad, 16 S.W. 281; Boyd v. Railroad, 16 S.W. 909. (2) The court erred in admitting evidence of the frequency of the use of the track by persons as a footway. (3) The plaintiff's instruction was wrong. First. It ignores the issue made by the pleadings. Second. It is inapplicable to the character of the case made by the evidence. (4) Each of the refused instructions requested by defendant should have been given. They each declare elementary propositions of law peculiarly applicable to this case.

Rassieur & Schnurmacher for respondent.

(1) Plaintiff's evidence did make out a prima facie case. Besides defendant is not in a position to ask this court to review the action of the trial court in overruling its demurrer at the close of plaintiff's case, because it proceeded to introduce evidence in its own behalf...

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