56 Mo. 338 (Mo. 1874), Burham v. St. Louis & I.M.R. Co.

Citation:56 Mo. 338
Opinion Judge:NAPTON, Judge.
Party Name:HENRY BURHAM, Respondent, v. ST. LOUIS & I. M. RAILROAD CO., Appellant.
Attorney:Dryden & Dryden, for Appellant. J. N. Straat, for Respondent. For the defendant, the court gave the following instructions:
Court:Supreme Court of Missouri
 
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Page 338

56 Mo. 338 (Mo. 1874)

HENRY BURHAM, Respondent,

v.

ST. LOUIS & I. M. RAILROAD CO., Appellant.

Supreme Court of Missouri.

March Term, 1874

Appeal from St. Louis Circuit Court.

Dryden & Dryden, for Appellant.

J. N. Straat, for Respondent.

OPINION

NAPTON, Judge.

This suit was brought to recover damages for injuries alleged by plaintiff to have resulted from the negligence of defendant's employees, in coming in collision with plaintiff's wagon whilst crossing the track of defendant's railroad. The plaintiff was driving his wagon down Fillmore Street in Carondelet, or South St. Louis, towards the river, and when partly on the track of the railroad, the locomotive, which was going at considerable speed, struck the wagon, destroyed it, and inflicted very serious wounds on the plaintiff, disabling him, to some extent, for life.

The only question in the case, was one of negligence or want of care on the part of the defendant, or contributory negligence on the part of the plaintiff, directly leading to the collision.

The court gave two instructions for the plaintiff:

" 1. If the jury find from the evidence that the plaintiff was injured while attempting to cross the track of the defendant, as stated in his petition, and that such injury was caused by the carelessness, negligence, or recklessness of the servants, agents and employees of the defendant, in conducting, managing and running the locomotive engine and cars attached thereto, without any fault, misconduct or negligence on the part of the plaintiff, directly contributing thereto, then they must find for the plaintiff."

" 2. The jury are instructed, that although the plaintiff may have failed to exercise ordinary care and prudence, while attempting to cross the track of defendant, as stated in his petition--which may have contributed remotely to the injury complained of--yet if the agents, servants and employees of the defendant were guilty of negligence, carelessness or recklessness, in conducting, running and managing the locomotive engine and cars thereto attached, which was the direct and immediate cause of the injury, and might have prevented it--the injury--by the exercise of ordinary prudence and care, the defendant is liable."

The third instruction relates the rule of damages, and no objection being made to it, is not inserted.

For the defendant, the...

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