37 S.W. 132 (Mo. 1897), Bender v. The St. Louis & San Francisco Railway Company

Citation:37 S.W. 132, 137 Mo. 240
Opinion Judge:Gantt, P. J.
Party Name:Bender, Appellant, v. The St. Louis & San Francisco Railway Company
Attorney:M. C. Reynolds & Halliburton for appellant. L. F. Parker and J. T. Woodruff for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:February 02, 1897
Court:Supreme Court of Missouri

Page 132

37 S.W. 132 (Mo. 1897)

137 Mo. 240

Bender, Appellant,


The St. Louis & San Francisco Railway Company

Supreme Court of Missouri, Second Division

February 2, 1897

Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.

Reversed and remanded.

M. C. Reynolds & Halliburton for appellant.

(1) It is the province of the jury to determine questions of fact which are at issue in a case. The court should not instruct them to draw inferences which are not legal. Moses v. Eddy, 28 Mo. 382; Smith v. Hutchison, 83 Mo. 690. (2) If there is any evidence relevant to the allegations, it is for the jury to determine their sufficiency, and the jury may make all reasonable inferences from the facts in evidence. Chamberlain v. Smith, 1 Mo. 482; Magon v. Whiting, 1 Mo. 613; State v. Woods, 7 Mo. 536; Barton v. Railroad, 52 Mo. 253; Frick v. Railroad, 75 Mo. 542. (3) The question of negligence is one of fact to be submitted to the jury under instructions from the court. Barton v. Railroad, 52 Mo. 253; Owens v. Railroad, 58 Mo. 386; Wyatt v. Railroad, 55 Mo. 485. (4) Though all the witnesses may testify that there was no negligence on the part of defendant, the jury may nevertheless find that there was negligence, if the physical facts of the case and the manner of injury raise the necessary inference. Hunt v. Railroad, 14 Mo.App. 161; Minster v. Railroad, 53 Mo.App. 276. (5) The question as to whether a given act was the proximate cause of the injury complained of is, where the character of facts are such that different conclusions may be drawn from them, a question for the jury. Dunn v. Railroad, 21 Mo.App. 188. (6) When plaintiff has made out a prima facie case of negligence against a railroad company in the operating of its road, although the defendant may introduce evidence which entirely overthrows and disproves the prima facie case of the plaintiffs, the trial court can not say as a matter of law that it is so overthrown and direct a verdict for defendant. Sappington v. Railroad, 14 Mo.App. 86; Boom v. Railroad, 20 Mo.App. 235; Kenney v. Railroad, 70 Mo. 578; Henry v. Railroad, 109 Mo. 488. (7) If the facts constituting alleged negligence are disputed, or if there be a reasonable doubt of the inferences proper to be drawn from undisputed facts, the question of negligence should be left to the jury. Fusile v. Railroad, 45 Mo.App. 541; Kinney v. Springfield, 35 Mo.App. 110; Brown v. Railroad, 50 Mo. 466; Hurlin v. Railroad, 92 Mo. 440; O'Hare v. Railroad, 95 Mo. 662; Kenney v. Railroad, 70 Mo. 578. (8) In questions of negligence where the character of facts are such that different conclusions may be drawn from them, or where undisputed they admit of different constructions and inference, the questions should be submitted to the jury. Norton v. Ittner, 56 Mo. 352; Bell v. Railroad, 72 Mo. 50; Mannerman v. Siemertz, 71 Mo. 104; Roddy v. Railroad, 104 Mo. 250; O'Mellia v. Railroad, 115 Mo. 205; Nagel v. Railroad, 75 Mo. 665; Scoville v. Railroad, 81 Mo. 434; Petty v. Railroad, 88 Mo. 306. (9) A demurrer to the evidence at the close of plaintiff's case admits every relevant fact shown by competent evidence, as well as every inference which may logically be drawn from the facts thus shown. Herboth v. Gaal, 47 Mo.App. 255; Field v. Railroad, 46 Mo.App. 451. (10) The evidence on the part of plaintiff in this case shows the drawbar to be defective and dangerous; and that plaintiff did not know of its dangerous condition, and that defendant could have known its condition by ordinary care and prudence; and these facts authorize the giving of the case to the jury without regard to defendant's evidence. Gibson v. Railroad, 46 Mo. 163; Rodney v. Railroad, 127 Mo. 676.

L. F. Parker and J. T. Woodruff for respondent.

(1) The burden of proving that defendant was negligent and that its negligence was the cause of the injury, rests upon the plaintiff. Shearman & Redfield on Neg. [2 Ed.], side page 12; 11 Thomp. Neg. 1035; O'Malley v. Railroad, 113 Mo. 319. (2) Not only so but if it appear that but for his unskillful manner in uncoupling the car, the injury would not have happened, then the plaintiff can not recover. Shearman & Redfield, Neg. [2 Ed.], side pages 25 to 34. (3) The question to be determined in every case is, not whether the plaintiff's negligence caused, but whether it contributed to the injury of which he complains. 2 Thomp. Neg., p. 1146; Milburn v. Railroad, 86 Mo. 104; 4 Am. and Eng. Ency. Law, p. 15. (4) Failing utterly to show negligence on the...

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