4 S.W. 389 (Mo. 1887), Stoher v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:4 S.W. 389, 91 Mo. 509
Opinion Judge:Ray, J.
Party Name:Stoher v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Bennett Pike for appellant. No brief for respondent.
Judge Panel:Ray, J. Norton, C. J., concurs in the result.
Case Date:May 16, 1887
Court:Supreme Court of Missouri
 
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Page 389

4 S.W. 389 (Mo. 1887)

91 Mo. 509

Stoher

v.

The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

May 16, 1887

Appeal from St. Louis Court of Appeals.

Reversed.

Bennett Pike for appellant.

(1) Plaintiff's own testimony did not make a prima facie case, and the demurrer to the evidence should have been sustained. Wood on Master and Servant, secs. 368, 419; Huffman v. Railroad, 78 Mo. 54. (2) The court committed error in the admission of testimony offered by plaintiff, against the objection of defendant. 1 Greenl. on Evid., sec. 52, p. 440, note 4; Hudson v. Railroad, 59 Ia. 581; 2 Starkie on Evidence, 381; Hubbard v. Railroad, 39 Me. 506; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 344; Parker v. Portland Publishing Co., 69 Me. 173. (3) The court refused to admit proper and legal testimony offered by defendant. Railroad v. Fowler, 56 Tex. 452. (4) The court committed error in giving the instructions asked by plaintiff. Belt v. Goode, 31 Mo. 128; Bradford v. Pearson, 12 Mo. 71; Quinlivan v. English, 44 Mo. 46; Georges v. Hufschmidt, 44 Mo. 179; Doehling v. Loos, 45 Mo. 150; Winters v. Railroad, 39 Mo. 468; Ewing v. Goss, 41 Mo. 492. (5) The court erred in refusing to give instructions numbered one, two, three, and four, asked by defendant. Railroad v. Sulphur Springs, 1 S. D., 6 P. F. S., 445; 2 Am. and Eng. R. R. cases, 170. (6) The court erred in giving instructions numbered one, two, three, four, and five, on its own motion, and in instructing the jury, orally, during the progress of the trial. Fitzgerald v. Hayward, 50 Mo. 516; Goetz v. Railroad, 50 Mo. 482; Railroad v. Arnold, 10 Am. and Eng. R. R. Cases, 219; Pierce on Railroads, 367, and cases cited.

No brief for respondent.

Ray, J. Norton, C. J., concurs in the result.

OPINION

Page 390

[91 Mo. 511] Ray, J.

Bertha Stoher, an infant, brings this suit by her next friend in the circuit court of the city of St. Louis, to recover damages for the death of her father, Nicholas Stoher, who was killed by the derailment of a passenger train on the railroad of defendant, near Bismarck, Mo., whilst he was acting as fireman upon the engine then drawing said passenger train. Upon a trial of the cause, plaintiff had judgment for damages in the sum of five thousand dollars, from which the defendant appealed to the St. Louis court of appeals, where the judgment was affirmed, pro forma, from which the case was appealed to this court. None of the witnesses testifying in the cause seem to have been present when the cars were overturned and the father of the infant plaintiff killed. The railroad track at this place was "an embankment about a foot high, composed, mostly, of rock and gravel, and built on the solid rock." At a distance from the place of the accident, variously estimated by the witnesses at from six or seven hundred to one thousand feet, there was a culvert passing through the roadbed, designed and intended to carry off the water that fell and accumulated during rains in the basin situated on the eastern side of the railroad. This culvert was a double box culvert, each opening four feet by four, and together with the railroad had been constructed and in use for a number of years. During the night of May 9, 1880, there had been a rain storm, and the water [91 Mo. 512] had accumulated in this basin, and so washed the railroad track and weakened the embankment, that the same gave way under the engine passing along there at about half past three o'clock at night, which said engine was thrown from the track and the said Nicholas Stoher, fireman as aforesaid, was then and there killed.

The petition, so far as material, sets forth the grounds of recovery, in substance, that said deceased was not guilty of any negligence that directly contributed to cause said injuries and his death, but that the same was wholly caused by the negligence of defendant and its agents, in failing to keep its track in repair and in a suitable condition for the passage of its engines and trains of...

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