7 S.W. 106 (Mo. 1888), O'Connor v. Missouri Pacific Railway Co.

Citation:7 S.W. 106, 94 Mo. 150
Opinion Judge:Black, J.
Party Name:O'Connor v. The Missouri Pacific Railway Company, Appellant
Attorney:Thos. J. Portis and Adams & Bowles for appellant. Sherry & Harlow for respondent.
Judge Panel:Black, J. Ray, J., absent.
Case Date:February 20, 1888
Court:Supreme Court of Missouri
 
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Page 106

7 S.W. 106 (Mo. 1888)

94 Mo. 150

O'Connor

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

February 20, 1888

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

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

(1) Defendant's objection to the introduction of any evidence, because the petition fails to state a cause of action, should have been sustained. There is no averment in the petition that the plaintiff was exercising due care, nor any facts stated from which such inference can be made. (2) Defendant's instruction in the nature of a demurrer to the evidence should have been given. Deceased's own carelessness in failing to look and listen for an approaching train shows such contributory negligence as precludes a recovery. Taylor v. Railroad, 86 Mo. 457; Mayher v. Railroad, 64 Mo. 267; Harlan v. Railroad, 64 Mo. 480; S. C. 65 Mo. 22; Evans v. Railroad, 62 Mo. 57; Kelley v. Railroad, 75 Mo. 138; Bell v. Railroad, 86 Mo. 599; Fox v. Railroad, 85 Mo. 679; Stepp v. Railroad, 85 Mo. 229; Purl v. Railroad, 72 Mo. 168; Fletcher v. Railroad, 64 Mo. 484; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Stillson v. Railroad, 67 Mo. 676; Zimmerman v. Railroad, 71 Mo. 476; Henze v. Railroad, 71 Mo. 636; Hixson v. Railroad, 80 Mo. 335; Turner v. Railroad, 74 Mo. 603; Moody v. Railroad, 68 Mo. 470; Milburn v. Railroad, 86 Mo. 104; Finlayson v. Railroad, 1 Dillon (U.S.C. C.) 579; Gorton v. Railroad, 45 N.Y. 660; Haas v. Railroad, 47 Mich. 401; Railroad v. Clark, 73 Ind. 168; Hinckly v. Railroad, 120 Mass. 257; Payne v. Railroad, 39 Iowa 326; Railroad v. Elliott, 28 Ohio St. 340; Artz v. Railroad, 34 Iowa 153; Railroad v. Hart, 87 Ill. 529; Railroad v. Huston, 95 U.S. 697; O'Donnell v. Railroad, 6 R. I. 211; Railroad v. McDemerell, 87 Ill. 450; Tully v. Railroad, 134 Mass. 499; Railroad v. Beale, 73 Pa. St. 504. (3) The court erred in giving the plaintiff's first instruction. In it the jury are told to find for her if the defendant kicked the car "for the purpose of sending it over the crossing as described in plaintiff's petition." This was error. It was also erroneous in not telling the jury what was the exercise of ordinary care. McGinnis v. Railroad, 21 Mo.App. 413. (4) The error in plaintiff's instruction was not cured by the giving of the instructions by the court. Welch v. Railroad, 20 Mo.App. 477; Goetz v. Railroad, 50 Mo. 474; State to use v. Nauert, 2 Mo.App. 295. (5) The instruction given by the court of its own motion was erroneous in referring the jury to the negligence charged in the petition. It is the well-settled rule of practice that an instruction ought not thus to refer the jury to the pleadings, and the instruction was further erroneous in telling the jury to find for plaintiff if defendant ran the car across the street "in such a manner as to endanger travelers passing along or across the street." There is no such averment in the petition. McGinnis v. Railroad, 21 Mo.App. 413.

Sherry & Harlow for respondent.

(1) It was not necessary to allege that deceased was at the time exercising due care. Buesching v. Gaslight Co., 73 Mo. 229; Flynn v. Railroad, 78 Mo. 195; Crane v. Railroad, 87 Mo. 588; Thomson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 190; Taylor v. Railroad, 26 Mo.App. 336. (2) Defendant's...

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