2 S.W. 794 (Mo. 1887), Huckshold v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:2 S.W. 794, 90 Mo. 548
Opinion Judge:Norton, C. J.
Party Name:Huckshold v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Geo. H. Benton for appellant. O. G. Hess and Klein & Fisse for respondent.
Case Date:January 31, 1887
Court:Supreme Court of Missouri
 
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Page 794

2 S.W. 794 (Mo. 1887)

90 Mo. 548

Huckshold

v.

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

Supreme Court of Missouri

January 31, 1887

Appeal from Iron Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

Geo. H. Benton for appellant.

(1) The court erred in refusing to permit the introduction of the testimony of Fred. Huber, taken before the coroner. Hays v. Walker, 2 Mo. 222; Peck v. Richey, 66 Mo. 114; Pruitt v. Martin, 59 Mo. 325; Spoonemore v. Cables, 66 Mo. 579. (2) The court erred in giving the instructions requested by plaintiff, and especially in giving the fourth instruction, without the qualification that said contributory negligence may be disclosed by the testimony for the plaintiff. Stepp v. Railroad, 85 Mo. 230. (3) The demurrer to the evidence ought to have been given by the court at the close of the plaintiff's case, and also at the close of the whole case. Powell v. Railroad, 76 Mo. 82; Harlem v. Railroad, 64 Mo. 480; Purl v. Railroad, 72 Mo. 168. (4) Defendant's refused instructions were correct law, applicable to the facts in the case, and should have been given. Henze v. Railroad, 71 Mo. 836; Railroad v. Beale, 73 Pa. St. 503; Besergel v. Railroad, 34 N.Y. 628; Morris & Essex v. Haslan, 33 N. J. 149; Benton v. Railroad, 42 Iowa 192; Dodge v. Railroad, 34 Iowa 280; Fleming v. Railroad, 49 Cal. 253; Hixson v. Railroad, 80 Mo. 335; Johnson v. Railroad, 77 Mo. 549; Railroad v. Feller, 84 Pa. St. 504. (5) The closing argument of plaintiff's counsel was calculated to prejudice the minds of the jury against the defendant, and ought not to have been permitted to be made by the court. State v. Lee, 66 Mo. 165. (6) The court erred in overruling defendant's motion for a new trial. Authorities cited above; Hoppe v. Railroad, 61 Wis. 357; Railroad v. Johnson, 103 Ill. 512; Coal Co. v. Conlan, 6 Am. & Eng. R. R. Cases, 243; Railroad v. Stewart, 83 Ind. 503.

O. G. Hess and Klein & Fisse for respondent.

(1) (a) There was no error in the refusal of the court to allow the testimony of Fred. Huber, taken before the coroner, to be read as independent evidence at the trial of this case. (b) Besides, the bill of exceptions does not state the evidence which was offered and excluded, in the connection where it was offered and excluded; and where the record fails to show the evidence so excluded, it is a conclusive presumption that the ruling of the trial court was correct. Wilson v. Board of Education, 63 Mo. 141. (c) The objection to the evidence is not preserved in the record, non constat, but it shows that the objections may have been perfectly good for a number of reasons, of which this court cannot now judge. (2) [a] It was not error to refuse to sustain defendant's demurrer to the evidence at the close of plaintiff's case. Session Acts, 1881, p. 79. (b) There was a conflict in the testimony. It is only when it is apparent at first blush that the finding of the jury in favor of the plaintiff would be wholly unsupported by the facts that an instruction for a non-suit is proper. Drain v. Railroad, 86 Mo. 574; Meyer v. Railroad, 40 Mo. 151; Callahan v. Warne, 40 Mo. 137; Norton v. Ittner, 56 Mo. 351; Stoddard v. Railroad, 65 Mo. 514; Buesching v. Gas Light Co., 73 Mo. 219; Mauerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653; Stepp v. Railroad, 85 Mo. 229. (3) There was no error in granting plaintiff's fourth instruction without the qualification that contributory negligence might be disclosed by the evidence offered by the plaintiff. The rule laid down in the case cited in appellant's brief (Stepp v. Railroad, 85 Mo. 229, 235-6), does not support the proposition contended for by appellant. (a) The presumption of law is, that the deceased was in the exercise of due care at the time of the accident. Buesching v. St. Louis Gas Light Co., 73 Mo. 233; Flynn v. Railroad, 78 Mo. 212. (b) It devolves upon those who allege the default of the company to make proof of its negligence, and that the injury was occasioned in consequence of such negligence; and, on the other hand, when the traveler's fault, if any there was, is not disclosed by his own testimony, and the company is shown to have been in default, it devolves upon the defendant to show the want of proper care on the part of the person injured, and that, by the observance of such precautions as are required by law, he could have seen or heard the train. Johnson v. Railroad, 77 Mo. 547; Stepp v. Railroad Co., 85 Mo. 229, 236; Buesching v. Gas Light Co., 73 Mo. 229; Sweigardt v. Railroad, 75 Mo. 480; Thompson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 509. (c) There was evidence here that the...

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