2 S.W. 424 (Mo. 1886), Donohue v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:2 S.W. 424, 91 Mo. 357
Opinion Judge:Norton, J.
Party Name:Donohue v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Bennett Pike for appellant. A. R. Taylor and D. McGowan for respondent.
Judge Panel:Norton, J. Henry, C. J., and Sherwood, J., dissent.
Case Date:December 06, 1886
Court:Supreme Court of Missouri
 
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Page 424

2 S.W. 424 (Mo. 1886)

91 Mo. 357

Donohue

v.

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

Supreme Court of Missouri

December 6, 1886

Rehearing Denied 91 Mo. 357 at 366.

Appeal from St. Louis Court of Appeals.

Affirmed.

Bennett Pike for appellant.

(1) The court below committed error in refusing to sustain the demurrer to the evidence at the close of plaintiff's testimony. Harlan v. Railroad, 65 Mo. 22; Henze v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Johnson v. Railroad, 77 Mo. 551; Turner v. Railroad, 74 Mo. 602; Hixon v. Railroad, 80 Mo. 335; Carlin v. Railroad, 37 Iowa 316; O'Keefe v. Railroad, 32 Iowa 467. (2) The court erred in giving the instructions asked by plaintiff. O'Keefe v. Railroad, 32 Iowa 467; Rine v. Railroad, 88 Mo. 392. (3) The court erred in refusing to give the instructions asked by the defendant. Johnson v. Railroad, 77 Mo. 552; Turner v. Railroad, 74 Mo. 602. (4) The court erred in giving the instructions on its own motion. Railroad v. Ryan, 80 Ill. 528; Allyn v. Railroad, 105 Mass. 77; Benton v. Railroad, 42 Iowa 192; Railroad v. Mitchell, 52 Miss. 808; Gorton v. Railroad, 45 N.Y. 660; Railroad v. Elliott, 28 Ohio St. 340; Fletcher v. Railroad, 64 Mo. 484; Leduke v. Railroad, 4 Mo.App. 485; Railroad v. Heileman, 49 Pa. St. 60; Railroad v. Miller, 25 Mich. 274.

A. R. Taylor and D. McGowan for respondent.

(1) There was no legal obligation on the part of the deceased to keep his eyes fixed on the train up to the moment of crossing the track, even if his view were free from obstruction, but, under all the circumstances, the question whether he was in the exercise of ordinary care was one of fact for the jury. Bonnell v. Railroad, 39 N. J. Law, 189. (2) One in a state of danger will not be held to that nice discrimination as to his acts which he might have exercised when uninfluenced by fear. Macon v. Davis, 27 Ga. 113; 1 Thompson on Neg. 430. (3) When a train comes from a direction where it could not have been seen at the time, it was not incumbent on the person, crossing, to look in that direction. The deceased could not see southward till he passed the row of houses which obstructed his view in that direction. McGem v. Railroad, 2 Daly, 76; Chicago v. Lee, 87 Ill. 454; Railroad v. Transfer Co., 32 N. J. 95. (4) The deceased, under all the circumstances, not only acted with care and prudence, but with extreme caution. The company, in running their train at such a high rate of speed, through the city and across the public streets, were guilty of gross negligence, and the case was properly submitted to the jury under instructions. Karle v. Railroad, 55 Mo. 476; Railroad v. Dunn, 78 Ill. 197, 199; Railroad v. Becker, 84 Ill. 483; 1 Thompson on Neg. 418, with authorities therein cited. (5) Where a train is run at a rate of speed greater than that prescribed by statute or local ordinances, the negligence of the company is usually characterized as gross. Karle v. Railroad, 55 Mo. 476; Railroad v. Dunn, 76 Ill. 197 and 199; Mossoth v. Canal Co., 64 N.Y. 524 and 531; 1 Thompson on Negligence, 418, with authorities therein cited. (6) The case was a proper one for the jury. McGrath v. Railroad, 63 N.Y. 523; Baltimore v. Miller, 29 Md. 252; 1 Thompson on Negligence, 419. (7) If the statutes require the ringing of the bell or the sounding of the whistle at a crossing, whether in country or town, the failure to comply with the law will render the company liable. Fletcher v. Railroad, 64 Mo. 484; Railroad v. Dill, 22 Ill. 264; Railroad v. McLean, 40 Ill. 218; Railroad v. Bell, 70 Ill. 102. (8) It is well settled, both in principle and authority, that the municipal authorities in large towns have the right to adopt such ordinances as the one cited...

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