26 Mo.App. 336 (Mo.App. 1887), Taylor v. Missouri Pac. Ry. Co.

Citation:26 Mo.App. 336
Opinion Judge:ELLISON, J.
Party Name:BENJAMIN B. TAYLOR, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Attorney:THOMAS G. PORTIS and WILLIAM S. SHIRK, for the appellant. G. W. BARNETT and W. W. S. SNODDY, for the respondent.
Judge Panel:Philips, P. J., concurs in the result. Hall, J., absent.
Case Date:May 23, 1887
Court:Court of Appeals of Missouri
 
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Page 336

26 Mo.App. 336 (Mo.App. 1887)

BENJAMIN B. TAYLOR, Respondent,

v.

THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

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...

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