6 S.W. 218 (Mo. 1887), Gurley v. Missouri Pac. Ry. Co.

Citation:6 S.W. 218, 93 Mo. 445
Opinion Judge:Black, J.
Party Name:Gurley v. The Missouri Pacific Railway Company, Appellant
Attorney:T. J. Portis and Adams & Bowles for appellant. A. Comingo and Whitsett & Jarrott for respondent.
Case Date:December 19, 1887
Court:Supreme Court of Missouri

Page 218

6 S.W. 218 (Mo. 1887)

93 Mo. 445



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

December 19, 1887

Appeal from Cass Circuit Court. -- Hon. N. M. Givan, Judge.

Reversed and remanded.

T. J. Portis and Adams & Bowles for appellant.

(1) The defendant's demurrer to the evidence should have been sustained. There was no evidence of any negligence in causing the cars to collide with each other, nor any evidence that defendant, by any means or in any manner, caused the collision. (2) The court erred in giving plaintiff's first instruction. In it the jury were not restricted to the negligence charged in the petition upon which a recovery could be had, but were told that he might recover if they found the defendant was guilty of any negligence. Anderson v. McPike, 86 Mo. 293; Brown v. Insurance Co., 86 Mo. 51; State v. Chambers, 87 Mo. 406; Zimmerman v. Railroad, 71 Mo. 491; Waldhier v. Railroad, 71 Mo. 514; Stillson v. Railroad, 67 Mo. 671; Price v. Railroad, 72 Mo. 416; Abbott v. Railroad, 83 Mo. 273; Bank v. Murdock, 62 Mo. 70; Greer v. Parker, 85 Mo. 107; Goodwin v. Railroad, 75 Mo. 73; Yarnell v. Railroad, 75 Mo. 575; Karle v. Railroad, 55 Mo. 476. (3) The damages are exorbitant and grossly excessive. Railroad v. Hand, 7 Kan. 380; Railroad v. Milliken, 8 Kan. 647; Railroad v. Young, 8 Kan. 659; Railroad v. Peavey, 29 Kan. 170; Collins v. City of Council Bluffs, 35 Ia. 432; Rose v. Railroad, 39 Ia. 256; Railroad v. McAra, 52 Ill. 296; Potter, Adm'r, v. Railroad, 22 Wis. 615; Spicer v. Railroad, 29 Wis. 580; Railroad v. McKean, 40 Ill. 218; Railroad v. Henry, 62 Ill. 142.

A. Comingo and Whitsett & Jarrott for respondent.

(1) The court properly overruled defendant's demurrer to the evidence. The testimony established the truth of all the material allegations in plaintiff's petition. There was no evidence that plaintiff was guilty of contributory negligence. "It is a principle well settled and always adhered to, that if there is any evidence tending to prove the issues of fact, the case must go to the jury." Brown v. Lazalere, 44 Mo. 388. "The court should not take the case from the jury if there is any evidence, however slight, tending to sustain the allegations of the petition." Kelly v. Railroad, 60 Mo. 604; Clotworthy v. Railroad, 80 Mo. 220. (2) In plaintiff's first instruction every issue made by the pleadings was submitted to the jury. The jury were restricted to the negligence alleged in plaintiff's petition. The instruction properly declared the law. Brown v. Railroad, 50 Mo. 461; Isabel v. Railroad, 60 Mo. 430; Owens v. Railroad, 58 Mo. 390, 393; Quaife v....

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