20 S.W. 490 (Mo. 1892), Jennings v. The St. Louis, Iron Mountain & Southern Railway Company

Citation:20 S.W. 490, 112 Mo. 268
Opinion Judge:Macfarlane, J.
Party Name:Jennings v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:H. S. Priest and H. G. Herbel for appellant. Kehr & Tittman for respondent.
Case Date:November 15, 1892
Court:Supreme Court of Missouri
 
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Page 490

20 S.W. 490 (Mo. 1892)

112 Mo. 268

Jennings

v.

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

Supreme Court of Missouri, Second Division

November 15, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein, Judge.

Affirmed.

H. S. Priest and H. G. Herbel for appellant.

(1) The court erred in overruling defendant's demurrer to plaintiff's evidence. Tucker v. Railroad, 26 N.E. 916; Tierney v. Railroad, 51 N.W. 176; Clark v. Railroad, 50 N.W. 365; Rogstadt v. Railroad, 31 Minn. 208; S. C., 15 Am. & Eng. R. R. Cases, 648; Scott v. Railroad, 29 N.E. 289; Carson v. Railroad, 23 A. 369; Warner v. Railroad, 21 A. 737; Blight v. Railroad, 21 A. 995; Purl v. Railroad, 72 Mo. 171; Harlan v. Railroad, 64 Mo. 480; Butts v. Railroad, 98 Mo. 276; Boyd v. Railroad, 105 Mo. 371; Yancey v. Railroad, 93 Mo. 433; Bell v. Railroad, 86 Mo. 612. (2) The court erred in giving instruction number 1 at plaintiff's instance. State v. De Bar, 58 Mo. 397; State v. Clark, 54 Mo. 34; State v. Binder, 38 Mo. 453; State v. Green, 87 Mo. 583; State v. McDonald, 38 Mo. 529; Rine v. Railroad, 88 Mo. 398; Harris v. Railroad, 40 Mo.App. 264; Duncan v. Railroad, 46 Mo.App. 204; Yancey v. Railroad, 93 Mo. 433; Rafferty v. Railroad, 91 Mo. 37. (3) The court erred in giving instruction number 2 of its own motion. O'Leary v. Rowan, 31 Mo. 119; Barrett v. Tel. Co., 42 Mo.App. 549; State to use v. Blackman, 51 Mo. 319; Railroad v. Hurley, 12 S.W. 226. (4) The court erred in refusing instructions numbers 4 and 5 asked by defendant. (5) The court erred in modifying defendant's refused instruction number 5, and giving it to the jury, as modified of its own motion. Worthington v. Railroad, 23 A. 593; Barr v. Kansas City, 16 S.W. 485; Wilmott v. Railroad, 16 S.W. 502; Zimmerman v. Railroad, 76 Mo. 490; Carson v. Railroad, 23 A. 369. (6) The court erred in overruling defendant's motion for a new trial because the verdict is against the evidence and contrary to the instructions of the court. Tierney v. Railroad, 51 N.W. 177; Boyd v. Railroad, 105 Mo. 381; Rogstadt v. Railroad, supra; Taylor v. Railroad, 86 Mo. 463.

Kehr & Tittman for respondent.

(1) Running the train in violation of the ordinances was negligence per se. Karle v. Railroad, 55 Mo. 476; Norton v. Ittner, 56 Mo. 351; Maher v. Railroad, 64 Mo. 267; Bowman v. Railroad 85 Mo. 533; Bergman v. Railroad, 88 Mo. 682; Keim v. Ry. & Trans. Co., 90 Mo. 314; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 336; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 236; Dahlstrom v. Railroad, 108 Mo. 525. The ordinances in question have frequently been passed upon by this court, and have always been upheld. Bergman v. Railroad, 88 Mo. 678; Merz v. Railroad, 88 Mo. 672; Donahue v. Railroad, 91 Mo. 357; Dunkman v. Railroad, 95 Mo. 232; Kelley v. Railroad, 95 Mo. 279; Dickson v. Railroad, 104 Mo. 491; Bluedorn v. Railroad, 108 Mo. 439; Dahlstrom v. Railroad, 108 Mo. 525; Fath v. Railroad, 105 Mo. 537. (2) A railroad company, operating dangerous machinery on and along the public streets of the city, must know, and in law is bound to know, that men, women and children have an equal right to the use of the highway and will be upon it. It is the duty of their servants to be on the lookout, and to take all reasonable measures to avoid injury to persons on the streets. Winter v. Railroad, 99 Mo. 509; Williams v. Railroad, 96 Mo. 281; Guenther v. Railroad, 95 Mo. 286; Hilz v. Railroad, 101 Mo. 36; Murray v. Railroad, 101 Mo. 236; Gurley v. Railroad, 104 Mo. 211; Hicks v. Railroad, 64 Mo. 430; Kelly v. Railroad, 75 Mo. 138; Frick v. Railroad, 75 Mo. 595; Donahue v. Railroad, 83 Mo. 555. (3) Appellant complains that its demurrer to the evidence at the close of the plaintiff's case was overruled. First. By going on with the case and putting in its own evidence, it waived its demurrer. Bowen v. Railroad, 95 Mo. 268; Guenther v. Railroad, 95 Mo. 286; Eswin v. Railroad, 96 Mo. 290; Hilz v. Railroad, 101 Mo. 36. Second. The former decision in this case establishes that the demurrer was properly overruled. Jennings v. Railroad, 99 Mo. 394. (4) There is no contributory negligence in the case. First. Plaintiff was upon an improved public street of the city, where he had a right to be, and where it was the defendant's duty to keep watch to avoid injury to him. Bluedorn v. Railroad, 108 Mo. 439, and cases cited under...

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