37 S.W. 119 (Mo. 1896), McManamee v. Missouri Pacific Railway Company

Citation:37 S.W. 119, 135 Mo. 440
Opinion Judge:Gantt, P. J.
Party Name:McManamee, Appellant, v. Missouri Pacific Railway Company
Attorney:A. R. Taylor for appellant. M. L. Clardy and H. G. Herbel for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:October 07, 1896
Court:Supreme Court of Missouri
 
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Page 119

37 S.W. 119 (Mo. 1896)

135 Mo. 440

McManamee, Appellant,

v.

Missouri Pacific Railway Company

Supreme Court of Missouri, Second Division

October 7, 1896

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

Affirmed.

A. R. Taylor for appellant.

(1) The first instruction given at the request of the defendant is fatally defective, in that it eliminated from the consideration of the jury the common law negligence alleged and proven. Any number of negligent acts preceding the injury, and contributing to it, may be pleaded, and any one proven will entitle a recovery. Hill v. Railroad, 121 Mo. 482, affirming same case, certified from St. Louis court of appeals, 49 Mo.App. 534. (2) The law is precisely the contrary to the doctrine stated in the second instruction given for defendant. Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Guenther v. Railroad, 108 Mo. 18; Chamberlain v. Railroad, 33 S.W. 441. (3) The fourth and fifth instructions given for defendant were also erroneous.

M. L. Clardy and H. G. Herbel for respondent.

(1) The first instruction given for defendant was proper. Watson v. Railroad, 133 Mo. 246; Fuchs v. Railroad, 133 Mo. 168; Waldhier v. Railroad, 71 Mo. 515; Railroad v. Eason, 35 S.W. 209; Maloy v. Railroad, 84 Mo. 275; Smith v. Railroad, 47 Mo.App. 550. (2) The criticism of defendant's second instruction is without merit. Watson v. Railroad, 133 Mo. 246. (3) The difficulty with counsel's argument is that he assumes that the whole duty of avoiding injury to plaintiff's husband rested on the defendant, whereas this court has uniformly held that an equal degree of care is by law imposed upon the traveler. Lane v. Railroad, 33 S.W. 651; Kelsay v. Railroad, 30 S.W. 339; Hayden v. Railroad, 124 Mo. 566.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

[135 Mo. 441] Gantt, P. J.

John McManamee was struck by a locomotive engine of the Missouri Pacific Railway Company near the junction of Poplar street and the levee, in the city of St. Louis, on the thirty-first day of January, 1891, and died from the injuries thus received.

[135 Mo. 442] This action is by his widow, Mrs. Mary A. McManamee, and is founded on the alleged negligence of the company in negligently managing and controlling its said engine and train attached thereto, and violating an ordinance forbidding the company to run its cars at a speed exceeding six miles an hour along said streets, and neglecting to cause the bell on said engine to be rung constantly while running along said streets, and failing to have a watchman at the intersection of said streets to warn persons of the approach of its trains.

The defense was a general denial, plea of contributory negligence, and that the ordinance regulating the speed to six miles an hour was void.

The evidence tended to prove that plaintiff was the wife of deceased; that deceased was killed by a train of defendant on its track on Poplar street; that the levee and Poplar street are public streets of said city.

On the day deceased was killed he went with a single horse and wagon to get some bricks lying on the levee, near the western curb thereof, and about eighty feet from where defendant's track curved from the levee west up Poplar street. While deceased was loading the bricks into his wagon the horse was not hitched in any way and started to walk away and then quickened its pace to a trot northward. The deceased immediately pursued and overtook the horse upon defendant's track on the curve. The horse on reaching the track turned west with the track into Poplar street and continued along or on the defendant's track. Deceased crossed from the south side of the track to the north side and reached the head of the horse, caught the bit or rein, and endeavored to get him off the track, when an engine attached to defendant's train and...

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