60 Mo. 323 (Mo. 1875), Whalen v. The St. Louis, K. C. & N. Ry. Co.

Citation:60 Mo. 323
Opinion Judge:WAGNER, Judge.
Party Name:EDMUND WHALEN, Respondent, v. THE ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY, Appellant.
Attorney:C. T. Garner, for Appellant. Donaldson & Farris, for Respondent,
Court:Supreme Court of Missouri
 
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Page 323

60 Mo. 323 (Mo. 1875)

EDMUND WHALEN, Respondent,

v.

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

Supreme Court of Missouri.

May Term, 1875

Appeal from Ray Common Pleas.

C. T. Garner, for Appellant.

I. The agents of defendant had no right to presume that there was any one upon the track, especially as it was the usual time for running the train, and at night ( Penn. R R. Co. vs. Henderson, 33 Penn. 325; Ch. & R.I. R. R. Co. vs. Still, 19 Ill. 499; Burham vs. St. L. & I. M. R. R. Co., 56 Mo. 338; Robinson vs. Cue, 22 Vt. 213; Redf. Railw., § 193 and authorities cited; 44 Penn. St., 375; Finlayson, Adm'x, vs. The Ch., B. & Q. R. R., 1 Dill. 579); and would be held only if, after becoming aware of plaintiff's danger, they failed to use ordinary care to avoid injuring him. (Ill. Cent. R. R. Co. vs. Godfrey, Am. Law. Reg., May 1875, p. 294.)

II. The plaintiff's fault contributed to and was the cause of the injury, and he had no right to recover. (Stuck vs. The Milw. & Miss. R. R. Co., 9 Wis. 202; Brown vs. Kendall, 6 Cush. 331; Schaabs vs. Woodburn Sarven Wheel Co., 56 Mo. 173; Morrissey vs. Wiggins Ferry Co., 43 Mo. 383, and authorities there cited; Redf. Bail. & Car., § 360, p. 276; Whart. Neg., §§ 300, 341; 12 Metc. 415; 6 Hall 592.)

III. Plaintiff had no right to walk along the track where there was no crossing or street; and if he was so walking there, he must abide the consequences of the risk and perils thus negligently and carelessly assumed. (Ill. Cent. R. R. Co. vs. Godfrey, Am. Law Reg., May 1875, p. 290; Aurora Rail Co. vs. Ginnis, 13 Ill. 585.)

IV. A passenger on board a railroad car, and a person on foot in the street, or on the track, do not sustain the same relation to the railroad company. ( Brand vs. Railroad, 8 Barb. 368; Ang. & Ames Corp., § 388, p. 404, 8 ed.)

V. The court should reverse on the ground of excessive damages. ( Sawyer vs. Hann. & . St. Jo. R. R. Co., 37 Mo. 240; Pratte vs. Blakely, 5 Mo. 205; Goetz v. Ambs, 22 Mo. 170; Collins vs. Alb. & Schenec. R. R. Co. 12 Barb. 492; Clapp vs. Huds. River R. R. Co., 19 Barb. 461; 21 Mo. 354.)

Donaldson & Farris, for Respondent, cited in argument, Brown v. Hann. & St. Jo. R. R. Co., 50 Mo. 461.

OPINION

WAGNER, Judge.

This was an action for damages inflicted by a train of cars on defendant's road, in crushing plaintiff's foot, whereby it became necessary to have one of his legs amputated.

The facts in the case are briefly these: The Richmond and Lexington junction, where the accident happened, is in a small town, and the depot is surrounded entirely by railroad tracks, so that in going to the depot it is necessary to cross a track, from whatever side it is approached. On the night when the injury occurred, between eight and nine o'clock the plaintiff, as he alleges, started to go to the depot...

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