64 Mo. 430 (Mo. 1877), Hicks v. Pacific R. Co.

Citation:64 Mo. 430
Opinion Judge:HENRY, Judge.
Party Name:J. D. HICKS, Respondent, v. THE PACIFIC RAILROAD COMPANY, Appellant.
Attorney:E. A. Anderson & Thos. J. Portis, for Appellant, James K. Shelby, for Respondent, Or, if you should find that the injury complained of was caused by the negligence of the plaintiff contributing directly to produce said injury, then your verdict will be for the defendant.
Court:Supreme Court of Missouri
 
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Page 430

64 Mo. 430 (Mo. 1877)

J. D. HICKS, Respondent,

v.

THE PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1877

Appeal from Jackson County Circuit Court.

E. A. Anderson & Thos. J. Portis, for Appellant, cited and commented on: 59 Penn. St., 129; 18 C. B. 46; 7 Met. 596; 12 Id. 485; 31 Vt. 79; Beadle vs. Eastern Counties R. R. Co., 2 C. B. N. S., 509; Case vs. Storer, 4 Exch. 31, 319; Warfell vs. The South Wales R. R. Co., 8 C. B. N. S., 525, 534, (E. C. L. R., vol. 98); Bolch vs. Smith, 7 Hurl. & Nor., 736 (1862), affirming Hounsell vs. Smyth, 7 C. B. N. S., 731 (E. C. L. R., vo. 97); Smith vs. St. Joe, 45 Mo. 449; Barker vs. Midland Rly. Co., 18 C. B. 58 (E. C. L. R., vol. 86); Winterbottom vs. Wright, 10 M. & W., 109; Sweeney vs. Old Colony and Newport R. R. Co., 10 Allen 368; Gautret vs. Egerton, 2 Com. Pleas, 374, (1867); Stone vs. Jackson, 16 C. B., 199 (E. C. L. R., vol. 81); Corby vs. Hill, 4 C. B. (N. S.), 558, (E. C. L. R., vol. 93); Stout vs. R. R. Co., 17 Wall. 657; See 8 Am. Law Reg., [U. S.], 737, note; Brown vs. Han. & St. Joe. R. R. Co., 50 Mo. 461; Dean vs. Clayton, 2 E. C. L. 461, S. C., 7 Taun. 489; Wilson vs. Brett, 11 M. & W. 113; Robinson vs. Cone, 22 Vt. 213; Johnson vs. Patterson, 14 Conn. 1; Birge vs. Gardiner, 19 Conn. 507; Dixon vs. Bell, 1 Clark 287-289; Lynch vs. Nurdin, 1 Ad. & Ell. N. S. 29, 38, 9 (41 E. C. L., 422, 426); Vanderplank vs. Miller, 1 Moo. & Malk. 169 (22 E. C. L., 280); Pluckwell vs. Wilson, 5 Car. & P. 375 (24 E. C. L., 368); Luxford vs. Large, 5 Car. & P. 421 (24 E. C. L. 391); Williams vs. Holland, 6 Car. & P., 23 (25 E. C. L. 261); Woolf vs. Beard, 8 Car. & Pa., 373 (34 E. C. L., 435); 2 Stephens, N. P., 10, 18; Rathborn vs. Payne, 19 Wend. 399; Cincinnati, Hamilton & Dayton R. R. Co. vs. Waterson & Kirk, 4 Ohio St. 424; New Haven St. & Trans. Co. vs. Vanderbilt, 16 Conn. 420; Sills vs. Brown, 9 Car. and P. 601 (38 E. C. L.), 245; Vere vs. Lord Cawdor, 11 East. 568; Wadhurst vs. Damane, Cro. Jac., 45; Barrington vs. Turner, 3 Lev. 28; Mayor of Colchester vs. Brooks, 7 Ad. & El., (53 E. C. L., 369); Davies vs. Mann, 10 M. & W., 546; Karle vs. K. C., St. Jo. & C. B. R. R. Co., 55 Mo. 484; Isabel vs. H. & St. J. R. R. Co., 60 Mo. 482; Maher vs. P. R. R. ante, p. 367; Keefe vs. Milwaukee & St. P. R. R. Co., 2 Cent. Law Jour. (March 12th, 1875), 170; Stout vs. Sioux City R. R. Co., 2 Dil. 294; Holmes vs. N. E. R. R. Co., 4 Exch. 254; Gillis vs. R. R. Co., Law Reg., 729, note.

James K. Shelby, for Respondent, cited: Stout vs. Sioux City & P. R. R. Co., 2 Dil. 294; Keefe vs. The Milwaukee & St. Paul R. R. Co., Centr. Law Journ., March 12, 1875; C. & A. R. R. Co. vs. Garvy, Adm'r, 58 Ill. 83; Isabel vs. Hann. & St. Joe. R. R. Co., 60 Mo. 481; Doss vs. Mo., Kas. & Texas R. R., 59 Mo. 27; R. R. Co. vs. Stout, 17 Wall. 657.

OPINION

HENRY, Judge.

This was an action by plaintiff to recover against defendant damages for a personal injury received under the following circumstances:

Plaintiff, at the time of the injury, was between twelve and fourteen years of age. On the evening of August, 1872, plaintiff was at defendant's platform at Lee's Summit, in Jackson county, when a freight train from the east came in on defendant's road.

It was about dusk, and a piece of timber with which one of the cars was loaded, projecting over the side of the car from twenty inches to two feet, struck plaintiff and broke his nose and otherwise injured him.

The plaintiff testified that he was about the middle of the platform when struck. Another witness testified that he (witness) stood in the middle of the platform when the car passed him, and was not hit by it. There was uncontradicted evidence that the agents of the company had repeatedly told plaintiff to keep off the platform. His father lived near the depot, and this boy and others were in the habit of going there when trains arrived, and jumping on the freight trains for a ride. He had no business there that evening. He was sent to the road by his father about half an hour before the arrival of this train to drive some of his hogs off of the track, and the evidence was that he would drive the hogs a short distance from the track and then take a seat on the end of the platform.

The train came in on the main track, and the platform adjoined this track. The evidence shows that between Pleasant Hill and Lee's Summit, a distance of twelve miles, there are five bridges, the last one about four miles east of Lee's Summit. This bridge is twelve feet and nine inches clear on the inside; cars are nine feet wide. At Pleasant Hill the cars were inspected and no projecting timber seen, and not until the plaintiff was injured was it known that the timber was projecting.

The platform was built by...

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