Moore v. Missouri Pac. Ry. Co.

• Citation: 28 Mo.App. 622
• Parties: MARY MOORE, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 17 January 1888
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 622

MARY MOORE, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Reversed and remanded.

HENRY G. HERBEL, for the appellant: The court erred in admitting incompetent, irrelevant, and immaterial evidence offered by plaintiff. Darley v. Cabanne, 1 Mo.App. 129; Parker v. Portland Co., 69 Me. 171; Railroad v. Huntley, 38 Mich. 537. The court erred in refusing to give the instructions asked by defendant. Blair v. Railroad, 89 Mo. 392; De Forest v Jewett, 88 N.Y. 264; Railroad v. Schertle, 97 Pa.St. 455; Railroad v. Shay, 82 Pa St. 198; Schmidt v. Herfurth, 5 Rob. (N. Y.) 137; Brawdy v. Brawdy, 7 Barr. 157; Rogers v. Ins. Co., 6 Paige 596; Blair v. Railroad, 89 Mo. 392; Wilson v. Benedict, 90 Mo. 213.

A. R TAYLOR, for the respondent: There was evidence tending to prove that the deceased lost his life by reason of stepping into the hole, and being thereby thrown down. Kelly v. Railroad, 70 Mo. 607; Buesching v. Gas Light Co., 73 Mo. 230; Keim v. Railroad, 90 Mo. 321. The law presumes that the deceased was exercising ordinary care at the time of his death. Buesching v. Gas Light Co., 73 Mo. 229; Flynn v. Railroad, 78 Mo. 212. The facts make a case under the law. Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 299; Waldhier v. Railroad, 87 Mo. 37. To avoid an act or contract on the ground of undue influence, regard will be had to the parties, and as in this case, if one of the parties is mentally weak and easily imposed upon, any evidence of imposition or unconscionable advantage taken will be sufficient to avoid the act. Story Eq. Jur., secs. 251, 239; Turley v. Edwards, 18 Mo.App. 686. The answer was a general denial, a plea of contributory negligence by the deceased, and a plea of release and discharge by the plaintiff to defendant after suit brought for the consideration of five hundred dollars, the alleged release being in writing, and filed with the answer. The reply was a general denial, except as to the signing of the release and the receipt of the five hundred dollars. The release and alleged discharge was obtained from the plaintiff by defendant's agent by fraud and deceit, and by undue influence practiced upon the plaintiff by the defendant's agent, while she was in the office of said agent. At the time she was in infirm health and in an extremely nervous condition, and was, by said false and fraudulent representations of said agent, induced to sign said release, and it was not her act. As soon as she became conscious of her act she caused the said money to be tendered back to defendant and said release to be demanded back, which defendant refused, and she still offers to return said money Butler v. Regents, 32 Wis. 124; Schultz v. Railroad, 44 Wis. 645; Railroad v. Doyle, 18 Kas. 59. Nor is it necessary, under such circumstances, to return, or offer to return, the money received. The jury may deduct it in their verdict. Railroad v. Doyle, 18 Kan. 64. Plaintiff did offer to return the money.

OPINION

LEWIS P. J.

The petition states in substance, that the plaintiff's deceased husband, George Moore, was in his lifetime in the defendant's employ as a switchman; that, on December 24, 1886, while in the discharge of his duties as such, he dismounted from the step of a moving tender to throw a switch, and, in so doing, stepped into a hole or excavation in the defendant's track and was thereby thrown down, so that the tender passed over and killed him; that the mishap was caused by the negligence of defendant and its agents in making and maintaining the said excavation in its track, so that it was a pitfall for the deceased; that the defendant and its agents in charge of the track knew, or, by the exercise of ordinary care, would have known, of the said defective condition of the track, in time to have repaired the same before the said killing, but negligently failed to do so; that the tender was also in negligently defective condition, by reason of there being no headlight thereon, and that this defect contributed to cause the fatality mentioned.

The answer was a general denial, a plea of contributory negligence by the deceased, and a plea of release and discharge by the plaintiff after suit brought, for the consideration of five hundred dollars; the alleged release being in writing, and filed with the answer.

The reply was, first, a general denial, except as to the signing of the release and the receipt of the five hundred dollars; second, that the release and alleged discharge were obtained from the plaintiff by fraud and deceit of the defendant's agent, and by undue influence practiced upon the plaintiff by the defendant's agent, while she was in the office of said agent; that, at the time, she was in infirm health and in an extremely nervous condition, and was, by the said false and fraudulent representations of said agent, induced to sign said release, and that it was not her act; that, as soon as she became conscious of what she had done, she caused the said money to be tendered back to the defendant, and the said release to be demanded back; which the defendant refused, and she still offers to return the said money.

The testimony submitted to the jury tended to show that, at about 6:15 p. m., when it had become somewhat dark, the locomotive and tender were backing northwardly, at a slow rate of speed on a switch track within the limits of Carondelet. The last that was seen of Moore alive, was when he was standing on the step of the tender, in a position from which he might step off at the proper moment and throw the switch which they were then approaching. He was next seen, dead, beneath the tender, which, as it appeared, had dragged him for some distance along the track. No witness had seen him alight, or fall, or leave the step of the tender in any way. There was an excavation, or drain, as it was called, about three and one-half inches in depth, extending across the track, between two of the ties. The indications of dragging began, according to one witness, from one and a half to two feet, and according to another, about eight feet, northwardly of this drain. There were two or three similar drains across the track, some forty feet or so to the south. There was testimony...