2 S.W. 427 (Mo. 1886), Keim v. Union Railway and Transit Co.

Citation:2 S.W. 427, 90 Mo. 314
Opinion Judge:Norton, J.
Party Name:Keim v. Union Railway and Transit Company, Appellant
Attorney:S. M. Breckinridge and M. F. Watts for appellant. Kehr & Tittman and G. A. Wurdemann for respondent.
Judge Panel:Norton, J. Sherwood, J., absent, and Henry, C. J., dissents.
Case Date:December 20, 1886
Court:Supreme Court of Missouri
 
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Page 427

2 S.W. 427 (Mo. 1886)

90 Mo. 314

Keim

v.

Union Railway and Transit Company, Appellant

Supreme Court of Missouri

December 20, 1886

          Appeal from the St. Louis Court of Appeals.

          Affirmed.

         S. M. Breckinridge and M. F. Watts for appellant.

         (1) The demurrer to the evidence at the close of plaintiff's case should have been sustained. There was no evidence tending to connect, in any way, the death of deceased with any negligence on the part of defendant. Holman v. Railroad, 62 Mo. 562; Kelley v. Railroad, 75 Mo. 142; Powell v. Railroad, 76 Mo. 83; Lenox v. Railroad, 76 Mo. 86. (2) There was no evidence to support the verdict. Henry v. Railroad, 76 Mo. 282; Powell v. Railroad, 76 Mo. 83; Pleasants v. Fanta, 22 Wall. 122; Commissioners v. Clark, 94 U.S. 284; Kelley v. Railroad, 11 Mo.App. 1; Drain v. Railroad, 10 Mo.App. 531; O'Donnell v. Railroad, 7 Mo.App. 190; Thompson on Negligence, secs. 421 and 422; Wilcox v. Railroad, 39 N.Y. 358; Harty v. Railroad, 42 N.Y. 469; Wendell v. Railroad, 91 N.Y. 420; Dodge v. Railroad, 34 Iowa 276; Railroad v. McMillan, 37 Ohio 534; Railroad v. Shacklett, 105 Ill. 364; Mahlen v. Railroad, 49 Mich. 585. (3) The admission, against defendant's objection, of the testimony of Mr. Cozzens, as to statements made to him by Mr. Lenhardt, was error. (4) There was error in the first instruction given by the court of its own motion, in that it left to the jury the finding of a fact not in issue, namely, the failure of defendant to ring the bell of the engine. Railroad v. Robinson, 106 Ill. 142; Thompson's Charging the Jury, sec. 62. (5) There was error in the refusal of the court to give the fourth, seventh and thirteenth instructions asked by defendant. (6) The sixth instruction asked by the court of its own motion was erroneous. Rine v. Railroad, 3 West. Rep. 800; S. C., 88 Mo. 392.

         Kehr & Tittman and G. A. Wurdemann for respondent.

         (1) Running the train in violation of the ordinance was negligence per se. Defendant, therefore, was guilty of negligence, both in running the train at an unlawful rate of speed and in not sounding the bell. Karle v. Railroad, 55 Mo. 476; Maher v. Railroad, 64 Mo. 267; Bergman v. Railroad, 88 Mo. 678. (2) Defendant's track ran along Gratiot street, a public thoroughfare, used in common by the community and the railroad company. The deceased, when struck and killed, was in the street in the middle of the foot path crossing the track. Defendant was bound to know that persons might be expected there at all times, and it was its duty to exercise the highest degree of vigilance. Frick v. Railroad, 75 Mo. 595-609-611; Donahoe v. Railroad, 83 Mo. 555. (3) The deceased was no trespasser. He was on the public street where it was his lawful right to be. The law presumes that he was in the exercise of due care. 73 Mo. 233. The defendant did not even plead contributory negligence. Buesching v. Gas Light Co., 73 Mo. 219; Flynn v. Railroad, 78 Mo. 195. (4) The defendant's negligence and the injuries to the deceased being shown, it was competent to infer that the latter was occasioned by the former and the connection between the two was properly left to the jury. Railroad v. Dunn, 78 Ill. 197; Johnson v. Railroad, 20 N.Y. 65; Billings v. Breinig, 45 Mich. 65-71; Willy v. Mulledy, 78 N.Y. 310-316; Williams v. Railroad, L. R. 9 Exch. 157; Moore v. Railroad, 73 Mo. 438; Williams v. Railroad, 74 Mo. 453; Goodwin v. Railroad, 75 Mo. 76; Persinger v. Railroad, 82 Mo. 196-199; Braxton v. Railroad, 77 Mo. 458. (5) Contributory negligence is a matter of defence, and to be available to defendant should have been pleaded, which was not done. Buesching v. Gas Light Co., 73 Mo. 219; Stephens v. City of Macon, 83 Mo. 345. (6) The case was properly tried on the theory that defendant was liable if it either knew, or might, by the exercise of ordinary diligence, have known of the dangerous position of the deceased on the track in time to prevent the accident. Bergman v. Railroad, 88 Mo. 678; Kelly v. Railroad, 75 Mo. 138; Werner v. Railroad, 81 Mo. 368; Scoville v. Railroad, 81 Mo. 434; Welsh v. Railroad, 81 Mo. 466. (7) The court cannot examine what purports to be the bill of exceptions in this cause, because the same was not signed until the third term after the rendition of the judgment. Givens v. Van Studdiford, 13 Mo.App. 168. (8) Although defendant, at the close of the plaintiff's case, offered the usual instruction of non-suit, it waived the point by going on with the case, and the only permissible inquiry now is, whether there was any evidence at all to sustain the verdict. Goodger v. Finn, 10 Mo.App. 226; Bolt & Iron Company v. Buell, 8 Mo.App. 594.

         Norton, J. Sherwood, J., absent, and Henry, C. J., dissents.

          OPINION

Page 428

          [90 Mo. 317] Norton, J.

         This is an action in which plaintiff seeks to recover damages for the alleged negligence of defendant in running its locomotive and cars over her husband, George Keim, and killing him. The answer of defendant is a general denial. On the trial plaintiff obtained judgment, which was affirmed by the St. Louis court of appeals, and the case is before us on defendant's appeal, and we are asked to reverse the judgment for alleged error of the...

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