Taylor v. Missouri Pac. Ry. Co.
Citation | 26 Mo.App. 336 |
Parties | BENJAMIN B. TAYLOR, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant. |
Decision Date | 23 May 1887 |
Court | Court of Appeals of Kansas |
APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.
Affirmed.
Motion for re-hearing overruled.
The case is stated in the opinion.
THOMAS G. PORTIS and WILLIAM S. SHIRK, for the appellant.
I. Defendant's objection to the introduction of any evidence, because the petition fails to state a cause of action, and shows, upon its face, such contributory negligence as precludes a recovery, should have been sustained. Doss v. Railroad, 59 Mo. 37; Nelson v. Railroad, 68 Mo. 593; Kelley v Railroad, 70 Mo. 604; Price v. Railroad, 72 Mo 418; Strauss v. Railroad, 75 Mo. 185; Henry v. Railroad, 76 Mo. 293; Leslie v. Railroad, 88 Mo. 56; Railroad v. Aspell, 23 Pa.St. 147; Railroad v. Bangs, 47 Mich. 470; Shannon v. Railroad, 23 Am. & Eng. R. R. Cases, 511; Railroad v. Letcher, 12 Am. & Eng. R. R. Cases, 115; Morrison v. Railroad, 56 N.Y. 302; Burrows v. Railroad, 63 N.Y. 556; 2 Rorer on Railroads, p. 1091, sect. 5; 2 Wood's Railway Law, sect. 305, p. 1148.
II. Defendant's instruction, in the nature of a demurrer to the evidence, should have been given. Same authorities cited under first point.
III. The instructions given to the jury at the request of the plaintiff are improper and misleading.
IV. The verdict is grossly excessive.
G. W. BARNETT and W. W. S. SNODDY, for the respondent.
I. The petition does not show such contributory negligence as precludes recovery, for it is for the jury to determine whether stepping off the train, while in motion, was, under the circumstances, such negligence as would preclude a recovery; hence, the court did not err in overruling defendant's objection to the introduction of any evidence by the plaintiff. Leslie v. Railroad, 88 Mo. 56; Doss v. Railroad, 59 Mo. 27; Kelly v. Railroad, 70 Mo. 604; Wyatte v. Railroad, 55 Mo. 485; Railroad v. Pointer, 14 Kas. 37; McQuilton v. Railroad, 2 Pacific Rep.; Railroad v. Rollins, 5 Kan. 167; Sawyer v. Rollins, 10 Kan. 466; Railroad v. Gladman, 15 Wall. [U. S.] 401; Delameter v. Railroad, 24 Wis. 578; Harvey v. Railroad, 116 Mass. 269; Story on Bailments, sects. 11 and 12; Bigelow v. Rutland, 4 Cush. 247; Bradley v. Railroad, 2 Cush. 539; Munro v. Leach, 7 Met. 274; Hall v. Lowell, 10 Cush. 260; Providence v. Clapp, 17 How. 161; Patterson v. Wallace, 1 Macy 748; Aldridge v. Railroad, 4 Scott 164; Coombs v. Purrington, 42 Me. 332; Foster v. Dickfield, 18 Me. 380; Carlton v. Bath, 2 Foster 559; Leicester v. Pittsfield, 6 Vt. 245; Beers v. Railroad, 19 Conn. 566; Park v. O'Brien, 23 Conn. 339; Curtiss v. Railroad, 20 Barb. 282; Dougherty v. Stephenson, 20 Pa.St. 210; Chaplin v. Hawes, 3 Car. & P. 554; Ingalls v. Bills, 9 Met. 1; Slapes v. Saltonstall, 13 Pet. 181; Robinson v. Dane, 22 Vt. 213; Birge v. Gardner, 19 Conn. 507; Stafford v. Railroad, 4 West. Rep. 790; Solomon, Admr'x, v. Railroad, 4 Cent. Rep. 775.
II. Defendant's instruction, in the nature of a demurrer to the evidence, was properly refused. Same authorities cited under first point.
III. The instructions given to the jury properly declare the law applicable to this case. See same authorities first cited.
IV. The verdict is not excessive, and does not show any partiality, prejudice or corruption.
V. The defence of contributory negligence must be pleaded in the answer, and is not available in this case, as the answer is a general denial. Donovan v. Railroad, 89 Mo. 147; Thorpe v. Railroad, 89 Mo. 650; Petty v. Railroad, 88 Mo. 396.
This is an action for personal injury. Plaintiff recovered judgment for two thousand dollars, and defendant appeals.
Defendant offered no evidence at the trial, and but one instruction, which was in the nature of a demurrer to the testimony. The material portion of the petition was as follows:
Defendant's answer was a general denial.
Defendant objected to any evidence under the petition, the grounds of objection being that it stated no cause of action; showing upon its face that the injury happened by reason of the contributory negligence of plaintiff. This objection was overruled. What acts or conduct amount to contributory negligence is necessarily governed by the circumstances of the particular case. The recklessness or heedlessness should be very apparent to justify a declaration by the court, as a matter of law, that certain conduct on the part of the complainant amounted to contributory negligence. Where it is questionable, it is the province of the jury to say, whether, under the circumstances of the particular case, the conduct amounts to contributory negligence. Leslie v. Railroad, 88 Mo. 50. In Doss v. Railroad (59 Mo. 27), it is said that acts, such as shown in the petition, " are risks which the most prudent men will take."
It follows that, as the petition presents a case for the jury, the court was correct in its ruling on the objection presented.
II. It is next urged that defendant's demurrer to the evidence should have been sustained, on the ground that the testimony showed the injury to have happened by reason of plaintiff's contributory negligence.
It would, as a general rule, be sufficient answer to this to say that no such defence was interposed by defendant. The alleged contribution to the accident should have been set up in the answer. Northrup v. Ins. Co., 47 Mo. 435, 444; Thompson v. Railroad, 51 Mo. 190; Donovan v. Railroad, 89 Mo. 147. In the latter case no evidence was offered by defendant, but an instruction, which amounted to a demurrer, was asked; of this the court say: This is the latest ruling of the supreme court on this question. That case, in connection with that of Milburn v. Railroad (86 Mo. 104), appear to establish a distinction as to contributory negligence in the matter of pleading. In the latter case it is held that, though contributory negligence is not pleaded, yet, if plaintiff's own proof " clearly establishes that the injury he complained of was as much the result of his own negligence as that of the party of whose negligence he complains," he cannot recover. In the case before us we do not consider that the evidence, on part of plaintiff, showed negligence in him sufficient to justify the court in declaring, as a matter of law, he could not recover. The question was properly submitted to the consideration of the jury.
We do not regard the damages assessed as excessive, under the rules governing appellate courts, in considering such questions.
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