50 Mo. 302 (Mo. 1872), Devitt v. Pacific R.R.

Citation:50 Mo. 302
Opinion Judge:BLISS, Judge.
Party Name:MARY DEVITT, Respondent, v. PACIFIC RAILROAD, Appellant.
Attorney:J. N. Litton, for appellant. W. E. Sheffield, for respondent.
Court:Supreme Court of Missouri
 
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Page 302

50 Mo. 302 (Mo. 1872)

MARY DEVITT, Respondent,

v.

PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

July Term, 1872

Appeal from Kansas City Court of Common Pleas.

J. N. Litton, for appellant.

If Devitt knew of the exposure to danger in having to pass under the bridge, and with such knowledge consented to and did continue in this service, he could not recover. ( Hayden v. Smithville Manuf. Co., 29 Conn. 548; Owens v. N.Y. Central R.R., 1 Lansing, N. Y., 108; Wright v. N.Y. Central R.R. Co., 25 N.Y. 566; Dynen v. Leach, 26 Law Jour., N. S. Exch., 221; Alsop v. Yates, 27 Law Jour., N. S. Exch., 156; Buzzell v. Laconia Manuf. Co., 48 Me. 114; McGlynn v. Brodie, 31 Cal. 376; Davis v. Detroit & Milwaukee R.R., 20 Mich. 105; Thayer v. St. Louis, Alton & Terre Haute R.R., 22 Ind. 26; Ind. & Cinn. R.R. v. Love, 10 Ind. 554; Frazier v. Pennsylvania R.R., 38 Penn. St. 104; Griffiths v. Gidlow, 3 Hur. & Nor. 648 Exch.; Skipp v. Eastern Railway Co., 9 Exch. 223; Wonder v. Balt. & O. R.R., 32 Md. 411-420; Moss v. Johnson, 22 Ill. 633; Farwell v. Boston & Worcester R.R., 4 Metc. 57; Coon v. Utica & Erie R.R., 6 Barb., N. Y., 241; 3 Robt., N. Y., 74; Ogden v. Rummens, 3 Foster & F. 751; Smith v. Dowell, id. 238; Priestly v. Fowler, 3 Mees. & W. 1; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Greenleaf v. R.R., 29 Iowa 14; Schouler Dom. Rel. 620; Shearman & R. Negl. 118, § 94; Pierce Am. Railw. 297.)

W. E. Sheffield, for respondent.

I. As to the question of the negligence of the appellant and also of James Devitt, the instructions given by the court present the matter quite as strongly in favor of the appellant as the law will warrant.

II. No laches or neglect is imputable to an infant during his minority, because he is not supposed to be cognizable of his rights or capable of enforcing them.

OPINION

BLISS, Judge.

The plaintiff recovered damages below, under the third section of the damage act, for the death of her minor son while in defendant's employ. The facts are undisputed. The plaintiff's son was a brakeman on a freight train, and was killed while at his brake upon the top of a freight car, in passing through Post Oak bridge, the cross timbers on the top of the bridge being so low as to strike his head. The accident occurred in the day time, and it was shown that deceased had been in defendant's employ about three weeks...

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