72 S.W. 717 (Mo.App. 1903), Saxton v. The Missouri Pacific Railway Co.

Citation:72 S.W. 717, 98 Mo.App. 494
Opinion Judge:SMITH, P. J.
Party Name:E. M. SAXTON, Appellant and Defendant in Error, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent and Plaintiff in Error
Attorney:Jas. T. Burney and A. A. Whitsitt, for appellant. R. T. Railey for respondent.
Case Date:March 02, 1903
Court:Court of Appeals of Missouri
 
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Page 717

72 S.W. 717 (Mo.App. 1903)

98 Mo.App. 494

E. M. SAXTON, Appellant and Defendant in Error,

v.

THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent and Plaintiff in Error

Court of Appeals of Missouri, Kansas City

March 2, 1903

Appeal from Cass Circuit Court.--Hon. W. L. Jarrott, Judge.

AFFIRMED.

Judgment affirmed.

Jas. T. Burney and A. A. Whitsitt, for appellant.

(1) Instruction C was vicious and was properly refused at the trial. The granting of a new trial because of such refusal was error. Chappell v. Allen, 38 Mo. 213; Raysdon v. Trumbo, 52 Mo. 35; Siegrist v. Arnot, 10 Mo.App. 197; Ehrlich v. Ins. Co., 15 Mo.App. 579; Clay v. Railroad, 17 Mo.App. 629; State v. Holmes, 17 Mo. 379; Shaffner v. Leahy, 21 Mo.App. 110; Weil v. Schwartz, 21 Mo.App. 372; Hackman v. Maguire, 20 Mo.App. 286; Judd v. Railroad, 23 Mo.App. 56; Bank v. Metcalf, 29 Mo.App. 384; McClure v. Ritchey, 30 Mo.App. 445; Ackley v. Railroad, 30 Mo.App. 657; Copp v. Hardy, 32 Mo.App. 588; Compton v. Baker, 34 Mo.App. 133; Woolen Mills v. Meyers, 43 Mo.App. 124; Steinwender v. Creath, 44 Mo.App. 356; Dobbs v. Cates, 60 Mo.App. 658; Chaney v. Ins. Co., 62 Mo.App. 45; Noyes v. Cunningham, 51 Mo.App. 194; Bowlin v. Creel, 63 Mo.App. 229; Bank v. Murdock, 62 Mo. 70; Mead v. Brotherton, 30 Mo. 201; Meyer v. Railroad, 40 Mo. 151; Kendig v. Railroad, 79 Mo. 207; Choteau v. Iron Works, 83 Mo. 73; Barr v. Kansas City, 105 Mo. 550; State v. Cantlin, 118 Mo. 100; Kaiser v. Ins. Co., 7 Mo.App. 197; Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 Mo. 91; Meyer v. Railway, 45 Mo. 137; Spohn v. Railway, 87 Mo. 74; Railway v. Stock Yards, 120 Mo. 541; State v. Williams, 136 Mo. 293; Jones v. Jones, 57 Mo. 138; Smith v. State, 53 Mo. 267. (2) Every fact must be conceded in plaintiff's behalf, which his evidence tends reasonably to establish. Cherry v. Railroad, 52 Mo.App. 499; Field v. Railway, 46 Mo.App. 449; Frank v. St. Louis, 110 Mo. 516; Patton v. Bragg, 113 Mo. 595; Thomas v. Railroad, 30 Mo.App. 86; Zwisler v. Storts, 30 Mo.App. 163; Culverhouse v. Worts, 32 Mo.App. 419; Twohey v. Fruin, 96 Mo. 104; Alcorn v. Railroad, 108 Mo. 81; Buck v. Railway, 108 Mo. 179; Brown v. Kimmell, 67 Mo. 430; Kelly v. Railroad, 70 Mo. 604; Baum v. Fryrear, 85 Mo. 151; Sage v. Reeve, 17 Mo.App. 210; Peck v. Railroad, 31 Mo.App. 123; Smith v. Tel. Co. 57 Mo.App. 259. (3) The practice of singling out in instructions specific acts, and asking the court to say as a matter of law that if these acts were established there could be no recovery, is not permissible. Meyer v. Railroad, 45 Mo. 137; Judd v. Railroad, 23 Mo.App. 61; McFadin v. Catron, 120 Mo. 252; Kennedy v. Railroad, 79 Mo. 207; Hayden v. Parsons, 70 Mo.App. 493; State v. Valle, 164 Mo. 530. (4) A trial court has no right to direct a jury, what inferences are to be drawn from certain facts. Izler v. Railroad, 35 S.E. 583. (5) Instructions which undertake to inform the jury that certain facts are not conclusive evidence of one of the ultimate facts in issue, are erroneous. Railroad v. Lamson, 90 Ills. App. 18. One is not entitled to an instruction separating part of the evidence from the rest. Harris v. City of Ansonia, 73 Conn. 359.

R. T. Railey for respondent.

(1) The petition, in the clearest manner possible, in direct terms, charges that our alleged negligence in failing to hold the train until the plaintiff got off, was not the proximate cause of plaintiff's injuries. Henry v. Railway, 76 Mo. 293; Mathiason v. Mayer, 90 Mo. 585. (2) The rule in this State, is now well settled, that pleadings shall be strictly construed against the pleader. Snyder v. Free, 114 Mo. 367; Overton v. Overton, 131 Mo. 566; Young v. Schofield, 132 Mo. 661; Boles v. Bennington, 136 Mo. 529; Leete v. Bank, 141 Mo. 581; Sidway v. M. L. & L. S. Co., 163 Mo. 372. (3) It is equally as well settled in this State, that plaintiff is bound by the allegations of his petition. Bruce v. Sims, 34 Mo. 251; Speck v. Riggin, 40 Mo. 406; Bank v. Armstrong, 62 Mo. 65; Chapman v. Callahan, 66 Mo. 312; Donnan v. Pub. Co., 70 Mo. 175; Kuhn v. Weil, 73 Mo. 215; Weil v. Posten, 77 Mo. 287; Wilson v. Albert, 89 Mo. 546; Bensieck v. Cook, 110 Mo. 182. (4) It is now likewise thoroughly settled in this jurisdiction, that where the petition charges general negligence, which is followed--as in this case--by a specific charge of negligence, alleged to have been the proximate cause of injury, plaintiff, in his proof, should be confined to such specific charge alone. Waldhier v. Railway, 71 Mo. 518; Hite v. Railway, 130 Mo. 136; McManamee v. Railway, 135 Mo. 447; Huston v. Tyler, 140 Mo. 263; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railway, 148 Mo. 74; Bartley v. Railway, 148 Mo. 139; Feary v. Railway, 162 Mo. 96; Pryor v. Railway, 85 Mo.App. 378.

OPINION

Page 718

[98 Mo.App. 497] SMITH, P. J.

--The plaintiff, a man far advanced in years, his age being three score and twelve, who was presumably under some physical disability, for he was a pensioner of the United States, on July 14, 1896, accompanied by his daughter-in-law and her infant child came from Louisburg, in the State...

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