5 Mo.App. 435 (Mo.App. 1878), Frick v. St. Louis, K.C. & N. Ry. Co.

Citation:5 Mo.App. 435
Opinion Judge:HAYDEN, J.
Party Name:JACOB FRICK, Respondent, v. ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.
Attorney:WELLS H. BLODGETT, for appellant: MCGAFFEY & STEBER, for respondent:
Case Date:March 26, 1878
Court:Court of Appeals of Missouri
 
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Page 435

5 Mo.App. 435 (Mo.App. 1878)

JACOB FRICK, Respondent,

v.

ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

March 26, 1878

1. The jury may make all reasonable inferences from facts in evidence; and where there is evidence to support a verdict, it will not be disturbed on the suggestion that it is against the weight of evidence.

2. Though it is unlawful for one not connected with a railroad to walk upon its tracks, and it is presumed that every one will obey the law, yet this will not relieve the railroad corporation from the duty of keeping a careful lookout while running its trains upon the streets of a city.

3. In an action for damages to the person, occasioned by being run over by a railroad car, the material question to be determined is, what was the immediate cause of the final act producing the injury; and where plaintiff's negligence is a remote condition, and that of defendant the causa causans, plaintiff's negligence is no bar to a recovery.

4. What is ordinary prudence depends, not upon abstract propositions, but upon the facts surrounding each case.

5. A two-year-old child, while walking upon a railroad track, was injured by the train backing over it; there was evidence tending to show that no one on the train saw the child, and that if some one on the train had been on the lookout the accident could have been avoided. Held, that it was not error to refuse to instruct that defendant was not liable for the damages occasioned by the child being run over.

APPEAL from St. Louis Circuit Court.

Affirmed.

WELLS H. BLODGETT, for appellant: The burden of proof of negligence is wholly upon plaintiff, and negligence cannot be presumed from the fact that an accident and an injury have occurred.-- Schultz v. Railroad Co., 37 Mo. 32. The child was upon defendant's track in violation of law.--Wag. Stat. 311, sec. 43. It is presumed that every one will obey the law.--2 Keyes 161; Pennsylvania R. Co. v. Hummell, 44 Pa.St. 377; Brown v. Lynn, 7 Casey 510; Reeves v. Railroad Co., 6 Casey 454. Defendant's instruction in the nature of a demurrer to the evidence should have been given.-- Boland v. Railroad Co., 36 Mo. 491; Keys v. Railroad Co., 65 Pa.St. 276; Bannon v. Railroad Co., 24 Md. 125; Maher v. Railroad Co., 64 Mo. 276; Railroad Co. v. Spearen, 47 Pa.St. 304; Shear. & Redf. on Neg., sees. 48, 48a 49; 40 Ind. 545; 49 Ind. 154; Railroad Co. v. Snyder, 24 Ohio St. 670; Wright v. Railroad Co., 4 Allen 283. Negligence and contributory negligence.-- Isabel v. Railroad Co., 60 Mo. 482; Karle v. Railroad Co., 55 Mo. 484; Brown v. Railroad Co., 50 Mo. 461. Measure of damages.--Shear. & Redf. on Neg., sec. 608; Gillegan v. Railroad Co., 1 E. D. Smith, 453; Sedgw. on Dam. (6th ed.) 545, note 3.

MCGAFFEY & STEBER, for respondent: Where the negligence of defendant is proximate, and that of plaintiff remote, an action for damages may be sustained though plaintiff is not entirely without fault.-- Hulsenkamp v. Railroad Co., 37 Mo. 552; O'Flaherty v. Railroad Co., 45 Mo. 70; Morrissey v. Ferry Co., 43 Mo. 383; Boland v. Railroad Co., 36 Mo. 484; Railroad Co. v. Stout, 1 Cent. L. J. 202; Adams v. Ferry Co., 27 Mo. 95. Negligence and contributory negligence.-- Brown v. Railroad Co., 50 Mo. 467; Whalen v. Railroad Co., 60 Mo. 323; Wyatt v. Railroad Co., 55 Mo. 485.

OPINION

HAYDEN, J.

This is an action to recover damages for an injury to a female child of the plaintiff, who lost an arm and leg by being run over by a train of the defendant. The injury was received within the limits of the city of St. Louis, but not at a point where the defendant's track crossed any street or public place where persons had a...

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