6 S.W. 272 (Mo. 1887), Yancy v. Wabash St. Louis & Pacific Railway Co.

Citation:6 S.W. 272, 93 Mo. 433
Opinion Judge:Norton, C. J.
Party Name:Yancey, Appellant, v. The Wabash, St. Louis & Pacific Railway Company et al
Attorney:R. E. Anderson for appellant. H. S. Priest and Geo. S. Grover for respondents.
Case Date:December 19, 1887
Court:Supreme Court of Missouri
 
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Page 272

6 S.W. 272 (Mo. 1887)

93 Mo. 433

Yancey, Appellant,

v.

The Wabash, St. Louis & Pacific Railway Company et al

Supreme Court of Missouri

December 19, 1887

Appeal from Hannibal Court of Common Pleas. -- Hon. Theodore Brace, Judge.

Affirmed.

R. E. Anderson for appellant.

(1) The act of impelling a detached car over a thoroughfare crossing was, per se, quasi-criminal negligence. Brown v. New York, 32 N.Y. 597; 6 Am. and E. R. R. Cas. 125, foot. And so likewise was the creation therein of a speed greater than the maximum prescribed by city ordinance; and the deceased being under no duty to look out for such acts of negligence, could not be negligent in failing to discover same. There can be no negligence except in violation of a corresponding duty. Langan v. St. Louis, 72 Mo. 392, 398. (2) The brakemen on the detached car could not presume that the public would look out for their quasi-criminal negligence, and could not assume that two wayfarers approaching the crossing in obvious ignorance of such danger, would discover it of their own motion, and the actions of the wayfarers, in approaching the track, constituted notice to the brakemen of the imminent peril of said wayfarers, after which the brakemen were guilty of a new and cumulative negligence in not giving oral warning, and also in not using the brake to retard the speed of the car -- the car being empty and running up grade and easily retarded, and the deceased being nearly across the track when struck. Meyers v. Railroad, 59 Mo. 223, 231; Kelley v. Hannibal, 75 Mo. 138; Werner v. Citizens, 81 Mo. 368; Wharton on Neg. (2 Ed.) secs. 348, 388. (3) In the violation of several city ordinance provisions on the subject, and in impelling the detached car in lineal travel on a city street, over the thoroughfare crossing without warning or lookout, the defendants became liable irrespective of any inadvertent negligence of the deceased. Bergman v. Railroad, 88 Mo. 678; Keim v. Railroad, 90 Mo. 314; Sess. Acts, 1881, p. 79; Huckshold v. Railroad, 90 Mo. 548. (4) The Missouri Pacific having authorized and consented to the use of its track by Wabash servants and rolling stock, for purposes of cotton transfer, thereby made said Wabash servants pro hac vice its own servants and agents, and as said servants were engaged in said so authorized service, the said servants, as to said Missouri Pacific, were not trespassers on the...

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