31 Mo.App. 111 (Mo.App. 1888)
SARAH J. SPARKS, Respondent,
KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY, Appellant.
Court of Appeals of Missouri, St. Louis.
May 8, 1888
Appeal fro the Oregon Circuit Court, HON. J. F. HALE, Judge.
WALLACE PRATT, OLDEN & GREEN, and C. B. MCAFEE, for the appellant: Under the evidence in this case the court below should have taken the case from the jury by giving defendant's first instruction asked at the close of plaintiff's case and renewed again at close of evidence. Powell v. Railroad, 76 Mo. 80; Yarnall v. Railroad, 75 Mo. 575; Bell v. Railroad, 72 Mo. 57; Railroad v. Ritchey, 102 Pa.St. 425; Railroad v. Senpyer, 92 Pa.St. 276; Railroad v. Holmes, 5 Col. 197. When the plaintiff in making out his case clearly establishes that the injury he complains of was as much the result of his own negligence as that of the party of whose negligence he complains, he cannot recover. Milleum v. Railroad, 86 Mo. 189; Buesching v. Gas Co., 73 Mo. 229. There is no conflict in the evidence that this switch could be handled safely by the exercise of ordinary care. There is no evidence that this switch was dangerous or unfit for use, and defendant ought to have judgment here on this point. The court improperly admitted testimony tending to show that defendant may have made changes in this switch after the accident. There was no evidence that the switch was defective, unsafe, or dangerous, and permitting such evidence to go to the jury was in effect telling them that, " this act of defendant is an admission of that which plaintiff has failed to otherwise prove, viz., that something was wrong with the switch or defendant would not have made changes after the accident." Besides, the evidence was inadmissible for any purpose. Cramer v. City, 45 Iowa 627; Switland v. Tel. Co., 27 Iowa 434; Hudson v. Railroad, 8 A. & E. R. R. Cases, 464. The petition does not state facts sufficient to constitute a cause of action. The language of the statute is: " That if deceased be a minor and unmarried, then the father and mother, or the survivor may sue." Rev. Stat., secs. 2121, 2123. The right of action being created by statute, one who sues must bring himself within the statutory terms. McNamara v. Slavins, 76 Mo. 329; Baker v. Railroad, 91 Mo. 86. The petition fails to state that deceased was a minor and unmarried, nor is there anything averred from...