44 S.W. 254 (Mo. 1898), O'Rourke v. Lindell Railway Co.
|Citation:||44 S.W. 254, 142 Mo. 342|
|Opinion Judge:||Macfarlane, J.|
|Party Name:||O'Rourke v. Lindell Railway Company, Appellant, et al|
|Attorney:||Boyle, Priest & Lehmann for appellant. A. R. Taylor for respondent.|
|Judge Panel:||Macfarlane, J. Robinson and Brace, JJ., concur. Barclay, P. J., does not sit.|
|Case Date:||January 25, 1898|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft, Judge.
(1) Instruction 1, given at the instance of the plaintiff, does not correctly express the rule of law in respect of this case, and was misleading. It made the Lindell company answerable for the high degree of care of a carrier. (2) The second instruction given at the request of the Suburban company, in addition to interjecting an issue not made by the pleadings, was also a comment upon the evidence and misleading as to the force and effect of the fact so commented upon. Fusilli v. Railroad, 45 Mo.App. 535; Noyes v. Cunningham, 51 Mo.App. 197; McFadin v. Catron, 120 Mo. 274; Steinwender v. Creath, 44 Mo.App. 366; Chappell v. Allen, 38 Mo. 222; Shaffner v. Leahy, 21 Mo.App. 110; Weil v. Schwartz, 21 Mo.App. 372; Clay v. Railroad, 17 Mo.App. 629; Anderson v. Kuechelor, 30 Mo. 525. (3) Instruction 7 of the series asked by the Lindell and refused should have been given. It was a proper direction of the jury. Ephland v. Railroad, 57 Mo.App. 158; Kleiber v. Railroad, 107 Mo. 240; Siegrist v. Amot, 86 Mo. 200; Nelson v. Railroad, 68 Mo. 593; Adams v. Railroad, 74 Mo. 554; Troombley v. Railroad, 69 N.Y. 158; Buel v. Railroad, 31 N.Y. 314; Wilson v. Railroad, 26 Minn. 278; Railroad v. Crunk, 119 Ind. 542; Imp. Co. v. Smith, 85 Va. 306; Railroad v. Coulburn, 69 Md. 369.
(1) On this record the respondent is not concerned as to whether or not there was error in the rulings of the court in favor of and at instance of the Suburban company. If the plaintiff obtained her verdict fairly and without error, as between herself and the Lindell company, she is entitled to an affirmance against that company, and she does not wish to have her case on this appeal involved in a contest between the Lindell company and the Suburban company. Wiggin v. St. Louis, 135 Mo. 558. (2) The only ground of error assigned against the court's action as between the respondent and the Lindell railway, is that the court, in the first instruction given at the instance of the plaintiff, made the appellant, Lindell railway, "answerable for the high degree of care of a carrier." This criticism is without merit, as is plainly apparent from the language of the instruction. (3) Instruction 1, asked by the Lindell company, should have been refused because it required of the Suburban company, so far as the Lindell company was concerned, the "exercise of a very high degree of care" when its relation of duty to said company required no such degree of care. (4) The next point is a claim that the Lindell company should be exculpated if the Suburban company could have avoided the negligent act of the Lindell company. This is not the law, of course.
[142 Mo. 345]
This is an action for compensation for injuries to plaintiff, alleged to have been sustained while plaintiff was a passenger on a car of the defendant, the St. Louis Suburban Railway Company. The car on which plaintiff was a passenger came into collision with a car of the Lindell Railway Company, and plaintiff's injuries were charged to have resulted in consequence of the collision. The plaintiff brought her action against both of the railway companies, and obtained a verdict and judgment against the Lindell company for $ 3,000 damages. The cause was tried before Judge Flitcraft and a jury. As to the Suburban company, the jury found for the defendant. The Lindell company moved for a new trial, which being refused, the pending appeal was taken. The only instances of error assigned by the appellant's brief refer to the rulings in giving or refusing instructions.
The place and surroundings of the collision are [142 Mo. 346] thus described in the statement of the learned counsel for appellant:
"The general course of Grand avenue is north and south, and on this street, between Locust avenue on the south and Finney avenue on the north, the tracks of the Lindell company are laid. These tracks are intersected by the tracks of the Suburban company, practically at right angles, by the extension of its line from Franklin avenue across Grand avenue on the east into Morgan street on the west. At a point on Franklin avenue about 200 feet east of Grand...
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