4 Mo.App. 485 (Mo.App. 1877), Leduke v. St. Louis & I.M.R. Co.

Citation:4 Mo.App. 485
Opinion Judge:HAYDEN, J.
Party Name:EUPHROSINE LEDUKE, Respondent, v. ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Appellant.
Attorney:THOROUGHMAN & WARREN, for appellant, A. J. P. GARESCH
Case Date:November 20, 1877
Court:Court of Appeals of Missouri
 
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Page 485

4 Mo.App. 485 (Mo.App. 1877)

EUPHROSINE LEDUKE, Respondent,

v.

ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

November 20, 1877

1. Where one, at the very moment when he knows a train is expected to arrive, goes upon a railroad track in front of an approaching train, which, by the proper exercise of his faculties, he must have seen and heard, the mere fact that the locomotive bell was not sounded as required by law will not make the railroad company liable for any damages which may result.

2. Where plaintiff seeks to hold defendant liable for an injury done, the burden is on him to show that defendant's negligence was the direct and proximate cause of the injury; and where the undisputed evidence shows that, though defendant was negligent, the causes which operated directly to produce the injury complained of are attributable to the plaintiff himself, there can be no recovery.

3. Where the issue made by the pleadings, and upon which the case was tried, was whether the injury was attributable to the failure of defendant to signal the approach of a train, and the undisputed evidence shows that it was not attributable to this cause, a verdict for plaintiff will be set aside as being without evidence to support it, though there be evidence tending to show that, but for the negligence of defendant in not reversing the engine, the injury might have been avoided.

4. Under a general allegation of negligence plaintiff cannot recover. Where the proof does not correspond with the allegations of the petition, plaintiff should ask leave to amend during the trial.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

THOROUGHMAN & WARREN, for appellant, cited: 64 Mo. 480, 487.

A. J. P. GARESCHÉ and S.W. LEAHY, for respondent, cited: Kennerzoc v. Pacific R. Co., 45 Mo. 62; Morris sey v. Wiggins Ferry Co., 47 Mo. 523; Keegan v. Kavanaugh, 62 Mo. 230.

OPINION

HAYDEN, J.

This is an action, under the statute, to recover damages for the death of plaintiff's husband, who was killed by a locomotive of the defendant, near where its track crossed Olive Street, in Carondelet. The deceased, Leduke, had for several years before his death lived in a house just east of the track, near this crossing, and diagonally opposite to his house, across the railway tracks, was a depot. To go to this depot, in the rear of which was a well, where he got his water, Leduke would pass up Olive Street, and in doing so was obliged to cross three railway tracks which intersected that street. At about eight o'clock in the morning of September 6, 1872, Leduke started with two buckets to get water, and found the east and centre tracks, which he had to pass, blocked by lines of stationary freight cars, which extended across the street, and for a considerable distance up and down the two tracks. The plaintiff's evidence tends to show that these cars, which were all coupled, had blocked the street up which Leduke wished to pass, for about an hour; and...

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