29 Mo.App. 48 (Mo.App. 1888), Summerville v. Hannibal & St. J. Ry. Co.

Citation:29 Mo.App. 48
Opinion Judge:ELLISON, J.
Party Name:JAMES H. SUMMERVILLE, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
Attorney:STRONG & MOSMAN, for the appellant. LEWIS A. CHAPMAN, for the respondent.
Case Date:February 06, 1888
Court:Court of Appeals of Missouri
 
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Page 48

29 Mo.App. 48 (Mo.App. 1888)

JAMES H. SUMMERVILLE, Respondent,

v.

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Daviess Circuit Court, HON. CHAS. H. S. GOODMAN, Judge.

Reversed and remanded.

The case is stated in the opinion.

STRONG & MOSMAN, for the appellant.

I. The court erred in refusing to direct the jury to find for the defendant. The petition does not state facts sufficient to constitute a cause of action. Rev. Stat. sec. 809; Laws of Mo. 1881, p. 79; Evans v. Railroad, 62 Mo. 57; White v. Chaney, 20 Mo.App. 397. And the evidence fails to sustain some of the averments in the complaint. Noeninger v. Vogt, 88 Mo. 593; Frink v. Railroad, 75 Mo. 601; Buesching case, 73 Mo. 219; Kelley v. Railroad, 70 Mo. 608; Cathcart v. Railroad, 19 Mo.App. 118; Turner v. Railroad, 78 Mo. 579.

II. The court erred in giving the instructions prayed for by plaintiff. ( a ) The demurrer should have been sustained. Cases cited supra. ( b ) The instruction required a verdict for plaintiff unless both the bell and whistle were sounded. Cathcart case, supra; Turner case, supra. ( c ) It assumed without proof, or requiring the jury to find from the evidence, that the animals were struck on the crossing of " a public, traveled road." Mumpower v. Railroad, 59 Mo. 247. ( d ) It did not require the jury to find that the crossing was in Chillicothe township, Livingston county, Missouri, thus ignoring the petition. ( e ) It did not limit damages to the sum laid in the complaint, nor to such sum as the proof showed. ( f ) It did not require a finding that the animals were struck or killed by the defendant's train, nor to find that the injury occurred at any time or place.

III. The instruction given by the court, on its own motion, did not supply any defect or omission above mentioned. ( a ) It assumes that defendant's train killed the cattle. Cathcart case, supra. ( b ) It singles out one fact and the evidence relating to it, and ignores all others, and is, therefore, bad.

IV. The court erred in refusing, when so requested, to check and rebuke plaintiff's counsel in making his closing argument. Huckshold v. Railroad, 90 Mo. 559; State v. Lee, 66 Mo. 165; State v. Hamilton, 55 Mo. 513; Strauss v. Railroad, 86 Mo. 421.

V. The court erred in overruling the motion to set...

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