7 S.W. 1 (Mo. 1888), Hurt v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:7 S.W. 1, 94 Mo. 255
Opinion Judge:Sherwood, J.
Party Name:Hurt v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Bennett Pike, Wm. Carter and Henry G. Herbel for appellant. Edwards, Whybark, Emerson, Cahoon & Cahoon for respondent.
Case Date:February 20, 1888
Court:Supreme Court of Missouri
 
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7 S.W. 1 (Mo. 1888)

94 Mo. 255

Hurt

v.

The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

February 20, 1888

Appeal from Madison Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

Bennett Pike, Wm. Carter and Henry G. Herbel for appellant.

(1) The court erred in admitting illegal and incompetent evidence offered by plaintiff. Belch v. Railroad, 18 Mo.App. 8; Birney v. Railroad, 20 Mo.App. 470; Railroad v. Beebe, 14 Neb. 472; City of Parsons v. Lindsay, 26 Kan. 430; Railroad v. Ball, 5 Ohio St. 571; Farrand v. Railroad, 21 Wis. 441. (2) The court committed error in rejecting legal and competent evidence offered by defendant. Allard v. Lamerande, 29 Wis. 502; Barker v. Barker, 14 Wis. 142; 2 Pom. Eq. Jur., sec. 936, also note 3 to sec. 940, and note 1 to sec. 942; Webb v. Armstrong, 6 Humph. 379; Morrison v. Deaderick, 10 Humph. 342; Hunt v. Lyle, 8 Yerg. 142. (3) The court erred in giving the instructions asked by plaintiff. Strauss v. Railroad, 75 Mo. 185; Sevier v. Railroad, 18 Am. & Eng. Ry. Cases, 245; S. C., 61 Miss.; Zimmermann v. Railroad, 71 Mo. 484; Yarnell v. Railroad, 75 Mo. 583; Goodwin v. Railroad, 75 Mo. 75. (4) The instructions given for plaintiff and defendant were contradictory. Stephenson v. Hancock, 72 Mo. 614; Price v. Railroad, 77 Mo. 508. (5) The court committed error in permitting the counsel of plaintiff to make statements to the jury not warranted by the law or the evidence, and that were calculated to mislead the jury. State v. Lee, 66 Mo. 166; Brown v. Swineford, 44 Wis. 282; Tucker v. Henwicker, 41 N.H. 322. (6) The verdict was excessive and evidently the result of prejudice and passion. Dunn v. Railroad, 21 Mo.App. 205; Railroad v. Barker, 33 Ark. 350; Railroad v. Brown, Adm'r, 26 Kan. 443; Rose v. Railroad, 39 Iowa 246; Nagle v. Railroad, 75 Mo. 653; Leiterman v. Railroad, 22 Mo.App. 351.

Edwards, Whybark, Emerson, Cahoon & Cahoon for respondent.

(1) Carriers of passengers for hire are bound to observe the utmost care and caution, and they are responsible to their passengers for such injuries, received by them in the course of their transportation, as might have been avoided or guarded against by the exercise of extraordinary vigilance, aided by the highest skill. Story on Bailments, sec. 601; 2 Red. on Railways [5 Ed.] 216; Railroad v. Roy, 102 U.S. 451; Jamison v. Railroad, 55 Cal. 593; Fairchild v. Stage Co., 13 Cal. 599; Lemon v. Chanslor, 68 Mo. 340; Taylor v. Railroad, 48 N.H. 30, 304; McPadden v. Railroad, 44 N.Y. 478; Packet Co. v. True, 88 Ill. 608; Railroad v. George, 19 Ill. 510; Frink v. Potter, 17 Ill. 406; Thomp. Car. Pass. 200; Warren v. Railroad, 8 Allen, 233; Eaton v. Railroad, 11 Allen, 505; Simmons v. New Bedford, V. & N. S. Co.. 97 Mass. 368. (2) Carriers are bound to manage their vehicles in such a manner as to secure the safety of their passengers. And, therefore, a railway company is liable for negligence in suddenly starting a train after it has once stopped, without allowing a reasonable time for passengers to get off or on. Curtis v. Railroad, 27 Wis. 158; Doss v. Railroad, 59 Mo. 27; Keating v. Railroad, 49 N.Y. 673; Mitchell v. Railroad, 30 Ga. 22; Railroad v. Hendricks, 26 Ind. 228; Gillis v. Railroad, 59 Pa. St. 143; Rose v. Railroad, L. R. 2 Exch. Div. 248; Robson v. Railroad, L. R. 2 Q. B. Div. 248; Railroad v. Kendrick, 40 Miss. 374; Lemon v. Chanslor, 68 Mo. 354; Straus v. Railroad, 86 Mo. 428. (3) The responsibility of a railroad company for the safety of its passengers does not depend on the kind of cars in which they are carried, or on the fact of the payment of fare by the passenger. Lemon v. Chanslor, 68 Mo. 357; Shiells v. Blackburne, 1 H. Bl. R. 115, 158; 2 Mees. & W. 143; Railroad v. Derby, 16 How. 468; Railroad v. Lockwood, 17 Wall. 357, 378, 384; Railroad v. Mahling, 30 Ill. 9; Steamer v. King, 16 16 How. [U.S.] 469; Jacobus v. Railroad, 20 Minn. 125; Watson v. Railroad, 24 Upper Canada [Q. B.] 98; Carroll v. Railroad, 1 Duer, 571. (4) Where a railroad company admits passengers into a caboose car, attached to a freight train, to be transported as passengers, it incurs the same liability for the safety of the passengers as though they were in the regular passenger coaches at the time of the incurring of the injury. Edgerton v. Railroad, 39 N. Y. [12 Tiffany] 227; Carroll v. Railroad, 1 Duer, 578; Railroad v....

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