29 S.W. 9 (Mo. 1895), Moore v. Kansas City & Independence Rapid Transit Railway Co.

Citation:29 S.W. 9, 126 Mo. 265
Opinion Judge:Burgess, J.
Party Name:Moore v. The Kansas City & Independence Rapid Transit Railway Company, Appellant
Attorney:Karnes, Holmes & Krauthoff for appellant. Hollis & Lithgow for respondent.
Case Date:January 09, 1895
Court:Supreme Court of Missouri
 
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29 S.W. 9 (Mo. 1895)

126 Mo. 265

Moore

v.

The Kansas City & Independence Rapid Transit Railway Company, Appellant

Supreme Court of Missouri, Second Division

January 9, 1895

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Reversed and remanded.

""Karnes, Holmes & Krauthoff for appellant.

(1) Plaintiff's first instruction was wrong; cars can only move on the tracks and it is the duty of the traveler to give way to them. ""Hicks v. Railroad, 27 S.W. 542; ""Zimmerman v. Railroad, 71 Mo. 476; ""Com. v. Temple, 14 Gray, 69; Elliott on Roads and Streets, pp. 577, 578; ""Childs v. Railroad, 33 La. Ann. 154; ""Chrisman v. Railroad, 150 Pa. St. 180; ""O'Neil v. Railroad, 129 N.Y. 125. (2) The court should have given defendant's instructions. ""Hagg v. Railroad, 55 N.W. 444; ""Olson v. Railroad, 81 Wis. 41; ""Hargis v. Railroad, 75 Tex. 19; ""Deville v. Railroad, 50 Cal. 383; ""Cornell v. Railroad, 82 Mich. 495; ""Philadelphia, etc., Co. v. Stinger, 78 Pa. St. 219. (3) The second instruction given for plaintiff was erroneous; it was not grounded on evidence in the case and does not state the facts constituting contributory negligence. ""Yarnall v. Railroad, 75 Mo. 575; ""Gurley v. Railroad, 93 Mo. 445; ""Goodwin v. Railroad, 75 Mo. 73; ""Ravenscraft v. Railroad, 27 Mo.App. 617. (4) Plaintiff's instruction on the measure of damages did not sufficiently inform the jury as to the elements constituting such damages. ""Hawes v. Stock Yards Co., 103 Mo. 66; ""Stephens v. Railroad, 96 Mo. 207; ""Slaughter v. Railroad, 116 Mo. 269.

""Hollis & Lithgow for respondent.

(1) The court committed no error in refusing appellant's instructions 1, 2 and 3, even had the case been tried on the theory of injury by defendant and negligence of plaintiff contributing to cause it which theory was abandoned by the issue tried. ""Hurt v. Railroad, 94 Mo. 225; ""Kellny v. Railroad, 101 Mo. 67, and cases cited; ""Dunham v. Railroad, 95 Mo. 232; ""Leabo v. Goode, 67 Mo. 126. (2) The instructions numbered 4 and 9 asked by defendant and given by the court, showed the theory upon which defendant relied and tried the case on, and were very favorable to and binding on it. ""Tetherow v. Railroad, 98 Mo. 74. (3) Plaintiff's first instruction does not claim any right to the use of defendant's track or its right of way, hence the authorities cited by appellant are not in point, unless defendant's right of way covers the whole street. ""Winters v. Railroad, 99 Mo. 509; ""Eswin v. Railroad, 96 Mo. 290; ""Smith v. Railroad, 91 Mo. 152; ""Glaessner v. Ass'n, 100 Mo. 509. (4) The instruction on measure of damages complained of is warranted and not open to the objections in the cases cited by appellant. ""Sidekum v. Railroad, 93 Mo. 400; ""Furnish v. Railroad, 102 Mo. 438; ""Smith v. Railroad, 108 Mo. 243. (5) As to the failure of plaintiff to prove the value of his lost time, this would not prevent the jury from finding nominal damages for same. The evidence shows five weeks entire loss and plaintiff not able to do a full day's work at time of trial. ""Hays v. Delzell, 21 Mo.App. 679; ""McCord v. Railroad, 21 Mo.App. 92; ""Fulkerson v. Eads, 19 Mo.App. 620; ""Herman v. Bradstreet, 19 Mo.App. 227. (6) The amount of the verdict shows that nothing was considered for lost time and the damages are not excessive.

OPINION

[126 Mo. 268] Burgess, J.

Action for personal injuries begun in the circuit court of Jackson county. The venue was subsequently changed to the circuit court of Pettis county on application of plaintiff where, on trial to a jury, plaintiff's damages were assessed at $ 2,640. Defendant appeals.

The petition is in two counts. The first alleges that defendant was operating a line of railway from Kansas City to Independence, Missouri; "that on or about the tenth day of February, 1891, plaintiff was, with his wagon and team, traveling along and upon a street in the city of Independence along the side of defendant's railroad track; that, while he was so traveling, one of defendant's trains of cars going in a westerly direction and approaching the place where plaintiff and his team were, did negligently and unnecessarily and carelessly manage said engine and cars so as to cause plaintiff's team to take fright and shove or back his wagon close to, upon and against the track of defendant, placing plaintiff and his wagon in great peril, when then and there defendant, by its servants operating said engine and train, did carelessly and negligently run the same against the wagon of plaintiff, breaking the same and throwing the plaintiff out upon the street" and injuring him. "Plaintiff avers that the servants of defendant managing said train, saw plaintiff, or by the exercise of ordinary care and diligence could have seen him, in said perilous position in time to have avoided the injury by the exercise of reasonable care on the part of the management of said [126 Mo. 269] train." The second count seeks to recover damages to plaintiff's wagon and the loss of some kerosene oil therein, occasioned by the same accident...

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