8 S.W. 371 (Mo. 1888), Guenther v. St. Louis, Iron Mountain & Southern Railway Co.
|Citation:||8 S.W. 371, 95 Mo. 286|
|Opinion Judge:||Brace, J.|
|Party Name:||Guenther v. St. Louis, Iron Mountain & Southern Railway Company, Appellant|
|Attorney:||Bennett Pike for appellant. Leo Rassieur and Dexter Tiffany for respondent.|
|Case Date:||May 21, 1888|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay, Judge.
Reversed and remanded.
(1) Plaintiff's testimony failed to make out a prima-facie case. Under the allegations of the petition the demurrer to the evidence should have been sustained. Rine v. Railroad, 88 Mo. 400; Yarnall v. Railroad, 75 Mo. 583; Maher v. Railroad, 64 Mo. 267; Zimmerman v. Railroad, 71 Mo. 477; Railroad v. Brinson, 10 Ga. 207; Railroad v. Hall, 72 Ill. 222. (2) The court committed error in the admission of testimony offered by plaintiff, in relation to the continued use of the tracks of defendant by pedestrians. Railroad v. Brinson, 10 Ga. 207; Railroad v. Godfrey, 71 Ill. 506; Sweeney v. Railroad, 10 Allen, 373; Hickey v. Railroad, 14 Allen, 429; Railroad v. Hummell, 44 Pa. St. 375; Gillis v, Railroad, 59 Pa. St. 129. (3) The court committed error in refusing to give the instructions asked by defendant. Maher v. Railroad, 64 Mo. 275; Shearm. & Redf. on Neg., sec. 478; Bell v. Railroad, 77 Mo. 61; Zimmerman v. Railroad, 71 Mo. 476; Powell v. Railroad, 76 Mo. 80; Turner v. Railroad, 75 Mo. 607; Bell v. Railroad, 72 Mo. 60. (4) The court committed error in giving instructions on its own motion. Fitzgerald v. Hayward, 50 Mo. 516; Goetz v. Railroad, 50 Mo. 472; Yarnall v. Railroad, 75 Mo. 583; Kelly v. Railroad, 75 Mo. 139; Wernse v. Railroad, 81 Mo. 368; Scoville v. Railroad, 81 Mo. 431; Welsh v. Railroad, 81 Mo. 466; Bergmann v. Railroad, 88 Mo. 683.
(1) Plaintiff's testimony did not fail to make out a prima-facie case, and furthermore defendant did not stand upon its demurrer to the evidence, but put in its proof and strengthened plaintiff's case, and thereby waived its demurrer. Goedger v. Finn, 10 Mo.App. 226; Cadmus v. Bridge, 15 Mo.App. 86; McCarty v. Railroad, 15 Mo.App. 385; Bolt & Iron Co. v. Buell, 8 Mo.App. 594. (2) The court committed no error in the admission of testimony offered by plaintiff to show the continued use by the public of that portion of the dedicated highway on which defendant had placed its tracks. Acceptance by the public of a dedication makes it effectual. Landis v. Hamilton, 77 Mo. 554. (3) The court's instructions fairly submitted the case to the jury. Klein v. Railroad, 90 Mo. 314; Bergman v. Railroad, 88 Mo. 678; Donahoe v. Railroad, 83 Mo. 543; Kelley v. Railroad, 75 Mo. 138; Frick v. Railroad, 75 Mo. 598; Scoville v. Railroad, 81 Mo. 434; Karl v. Railroad, 55 Mo. 482. The instructions of the court are not open to the criticisms made, but even though instructions may be subject to criticism, still the case will not be reversed, where it is evident from the whole record that the judgment is for the right party. R. S., sec. 3775; Tate v. Railroad, 64 Mo. 149; Nelson v. Foster, 66 Mo. 381; Noble v. Blount, 77 Mo. 235; Bradford v. Floyd, 80 Mo. 207; Methudy v. Ross, 81 Mo. 481; Otto v. Bent, 48 Mo. 23; Hedecker v. Ganzhorn, 50 Mo. 154; Haskings v. Railroad, 58 Mo. 302; Prewitt v. Martin, 59 Mo. 325; Noffsinger v. Bailey, 72 Mo. 216; State v. Hopper, 71 Mo. 425.
[95 Mo. 289]
This is an action in which plaintiff seeks to recover damages for the alleged negligence of defendant in running its locomotive and cars over her husband, Jacob Guenther, and killing him. The answer of the defendant contained a general denial and a plea of contributory negligence; the reply of plaintiff to the answer was a general denial. At the close of plaintiff's evidence in chief, a demurrer to the evidence was interposed, which being overruled the defendant then introduced its evidence, and the case was submitted to the jury. Under the instructions of the court, a verdict was rendered for the plaintiff, and from the judgment entered thereon, the defendant, after an unsuccessful effort for a new trial, appeals, and assigns for error the refusal of the court to sustain the demurrer to the evidence, the admission of improper evidence for the plaintiff, the giving of improper instructions for the plaintiff, and refusing proper instructions for the defendant.
The defendant is not in a position to urge the overruling of the demurrer to the evidence, as reversible error, having waived the same by putting in its own evidence, and the case will have to be examined and determined upon the whole evidence in the case. Bowen v. Railroad, ante, p. 268.
It appears from the evidence that, about seven o'clock on the morning of the thirteenth of August, 1884, the deceased, while walking southwardly on the defendant's track, at a point within the limits of the city of St. Louis, about three miles south of the Union Depot, was struck by the Carondelet accommodation train, running south; that he was thrown from the track and died the same day; that the train was about on time, perhaps a few minutes late, and running at the rate of from fifteen to twenty miles an hour; that there is a plain and unobstructed view of the track for five hundred yards or more north of the point where the [95 Mo. 290] collision took place. The evidence of the plaintiff tended to prove that on the train, while moving over this distance, no bell was rung, and no whistle sounded, till at the moment when Guenther was struck. The evidence of the defendant tended to show that the bell was being continually rung on the engine during the whole time the train was moving to the moment...
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