O'Rourke v. Lindell Ry. Co.
Decision Date | 18 January 1898 |
Citation | 44 S.W. 254,142 Mo. 342 |
Parties | O'ROURKE v. LINDELL RY. CO. et al. |
Court | Missouri Supreme Court |
Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.
Action by Johanna O'Rourke against the Lindell Railway Company and another. From a judgment for plaintiff against the Lindell Railway Company only, it appeals. Affirmed.
Boyle, Priest & Lehmann, for appellant. A. R. Taylor, for respondent.
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 thus described in the statement of the learned counsel for appellant: The plaintiff was seated in the car going west when it was struck by the car of the Lindell Company going south. In the collision plaintiff was seriously hurt. There is abundant testimony from which negligence could reasonably be found on the part of the Lindell Company in the management of its car. There is also testimony from which it might reasonably have been found that the Suburban Company was negligent in not taking due care to avoid the collision after the danger thereof became manifest.
Error is only assigned to the rulings of the court in giving and refusing instructions. The court gave one instruction at request of plaintiff, which, for convenience, we divide into four paragraphs. It is as follows: (2) (On measure of damages; is not questioned in this court.) "(3) If the jury find from the evidence that on the 16th day of February, 1894, the St. Louis & Suburban Railway Company was the carrier of passengers for hire, and that on said day said defendant, by its servants, received Johanna O'Rourke as a passenger upon defendant's car, to be carried as such to her point of destination on said defendant's line; and if the jury further find from the evidence that whilst said Johanna was such passenger upon said car, at or near the intersection of Grand avenue and Morgan street, the car on which said Johanna was such passenger was collided with by a car belonging to the Lindell Railway Company, and that said Johanna was thereby injured, — then the court instructs the jury that, if the servants of defendant St. Louis & Suburban Railway Company in charge of its car in which said Johanna was such passenger could, by the exercise of a very high degree of care and watchfulness in the management and control of said car, have prevented said collision, and failed to do so, then the St. Louis & Suburban Railway is liable." "(4) And if the jury further find from the evidence in this case that the servants of defendant Lindell Railway Company, prior to and at the time of said collision, were not exercising ordinary care to avoid said collision, and that by the exercise of such care by the servants of such defendant they would have avoided the collision; and if the jury further find that such...
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