18 S.W. 895 (Mo. 1892), Mahaney v. St. Louis & H. Ry. Co.

Citation:18 S.W. 895, 108 Mo. 191
Opinion Judge:Gantt, P. J.
Party Name:Mahaney v. The St. Louis & Hannibal Railroad Company, Appellant
Attorney:James H. Orr and Elijah Robinson for appellant. Harrison & Mahan for respondent.
Case Date:February 02, 1892
Court:Supreme Court of Missouri

Page 895

18 S.W. 895 (Mo. 1892)

108 Mo. 191

Mahaney

v.

The St. Louis & Hannibal Railroad Company, Appellant

Supreme Court of Missouri, Second Division

February 2, 1892

Appeal fro Hannibal Court of Common Pleas. -- Hon. Thos. H. Bacon, Judge.

Reversed and remanded.

James H. Orr and Elijah Robinson for appellant.

(1) Daniel Archdeacon, on his voir dire, said that his relation to plaintiff would influence his verdict, and he should, therefore, have been excused by the court. Railroad v. Adler, 56 Ill. 344; Davenport Co. v. Davenport, 13 Iowa 229. (2) The court erred in permitting plaintiff to prove that he was a poor man, a married man and the number of his children, their ages, etc. This testimony had no legitimate bearing on the issues made by the pleadings, and was calculated to work to the prejudice of the defendant by arousing the sympathies of the jurors in favor of the plaintiff. Railroad v. Bayfield, 37 Mich. 205; Railroad v. Boches, 55 Ill. 379; Railroad v. Butler, 57 Pa. St. 335; Beord v. Skeldon, 13 Ill. 54; Railroad v. Moranda, 93 Ill. 302; Railroad v. Gower, 85 Tenn. 465; Joliet v. Conway, 119 Ill. 489; Railroad v. Lyde, 57 Texas, 505; Hunt v. Railroad, 26 La. 363; Railroad v. Roy, 1 Am. & Eng. R. R. Cases, 225; Railroad v. Bush, 101 Ind. 582; Overholt v. Vieths, 93 Mo. 422; Stephens v. Railroad, 96 Mo. 214. (3) The closing argument of plaintiff's attorney was calculated to prejudice the minds of the jurors, especially in view of the testimony that had been introduced by plaintiff as to his condition in life, and that he was a married man with two small children, etc. Brown v. Swineford, 44 Wis. 282; People v. Mitchell, 62 Cal. 411; Ins. Co. v. Cheever, 36 Oh. St. 201; People v. Quinn, 123 Ill. 347; People v. McDonald, 126 Ill. 153; State v. Lee, 66 Mo. 165; State v. Jackson, 95 Mo. 654. (4) The court erred in permitting the doctor to testify as to the danger attending such operations as the amputation of plaintiff's leg, and the per cent. of such operations that prove fatal. This testimony did not throw any light on any question which the jurors were called upon to consider, and was calculated to create a prejudice. Miley v. Railroad, 8 N. Y. (S. C.) 455. (5) The defendant should have been permitted to impeach the witness Craig. (6) Plaintiff's instruction, numbered 2, should not have been given. It was simply an abstract proposition of law, and even if correct was not applicable to any fact in evidence. It partook of the nature of a lecture more than of an instruction, and would have been more appropriate in an argument for the plaintiff than in the court's instructions. It was calculated to mislead the jury. Haegele v. Stove Co., 29 Mo.App. 486. (7) The third instruction given for plaintiff is subject to two objections: First. It assumed that the defendant's track was defective. This was one of the principal issues in the case, and an instruction which assumed the existence of that fact was very prejudicial to the defendant and clearly erroneous. Stoher v. Railroad, 91 Mo. 509; Stocker v. Green, 94 Mo. 280; Kramer v. Mason, 96 Mo. 559; Liggett v. Morgan, 98 Mo. 39; Robertson v. Drane, 100 Mo. 273. Second. If the track was defective, and plaintiff had knowledge of that fact, then he assumed the risk, regardless of what his opinion may have been as to whether the defect increased the danger. Reeves' Domestic Rel., p. 465, note; Hayden v. Smithville, 29 Conn. 548; Cooley on Torts, p. 551; Hulett v. Railroad, 67 Mo. 239. The sixth instruction is subject to the same objection. (8) Instruction, numbered 7, withdrew from the jury entirely the consideration of the question of negligence on the part of the plaintiff. Clay v. Railroad, 17 Mo.App. 629. (9) Defendant's instruction, numbered 4, should have been given. If the defendant's track was defective, and if plaintiff knew of such defect and entered into and continued in the defendant's service notwithstanding such defective track, then he unquestionably assumed the risks incident to such defective track. Noland v. Shickle, 3 Mo.App. 300; Cummins v. Collins, 61 Mo. 520; Devitt v. Railroad, 50 Mo. 305; Smith v. Railroad, 69 Mo. 32; Porter v. Railroad, 71 Mo. 66. (10) Defendant's instructions, numbered 15 and 27, should have been given. (11) The court erred in permitting the plaintiff to prove that the track in question had been repaired or changed more than six months after the accident. Parker v. Portland Co., 69 Me. 173; Dougan v. Trans. Co., 56 N.Y. 1; Baird v. Daly, 68 N.Y. 547; Dale v. Railroad, 73 N.Y. 468; Reed v. Railroad, 45 N.Y. 574; Salters v. Canal Co., 3 Hun, 338; Hudson v. Railroad, 59 Iowa 581; Morse v. Railroad, 30 Minn. 465; Malley v. Carpet Co., 51 Conn. 524; Ely v. Railroad, 77 Mo. 34; Hipsley v. Railroad, 88 Mo. 354.

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