8 S.W. 777 (Mo. 1888), Dahlstrom v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:8 S.W. 777, 96 Mo. 99
Opinion Judge:Norton, C. J.
Party Name:Dahlstrom v. St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Bennett Pike for appellant. Pattison & Crane for respondent.
Judge Panel:Norton, C. J. Ray, J., absent.
Case Date:June 18, 1888
Court:Supreme Court of Missouri
 
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Page 777

8 S.W. 777 (Mo. 1888)

96 Mo. 99

Dahlstrom

v.

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

Supreme Court of Missouri

June 18, 1888

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner, Judge.

Reversed and remanded.

Bennett Pike for appellant.

(1) The motion in arrest of judgment should have been sustained, as the petition does not state facts sufficient to constitute a cause of action. Stewart v. Railroad, 14 A. & E. R. R. Cas. 679; Bell v. Railroad, 72 Mo. 50; Cooley on Torts, 606. (2) The demurrer to the evidence should have been sustained. Bell v. Railroad, 72 Mo. 50; Harlow v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Mahn v. Railroad, 64 Mo. 267; Goeton v. Railroad, 45 N.Y. 662; Shearm. & Redf. Negl. sec. 488; Pierce Am. Rail. Law, 273; Stillson v. Railroad, 67 Mo. 671. (3) The instructions given for plaintiff were erroneous and improper. 1 Wharton on Neg., sec. 420; Bell v. Railroad, 72 Mo. 50; Zimmerman v. Railroad, 71 Mo. 477; Karle v. Railroad, 55 Mo. 476; Harlan v. Railroad, 64 Mo. 480; Galell v. Railroad, 60 Mo. 475; Harlan v. Railroad, 65 Mo. 22; Nelson v. Railroad, 68 Mo. 593; Cagney v. Railroad, 69 Mo. 416.

Pattison & Crane for respondent.

(1) The first proposition as to negligence laid down by the court below is correct. Johnson v. Railroad, 77 Mo. 548, 553; Hicks v. Railroad, 64 Mo. 439, 440. It is the duty of the railroad company to have a proper regard for human life in running through towns and populous neighborhoods, and at places on the road where, by the forbearance and tacit consent of the company, persons are in the habit of passing over or along the road, even where there are no public crossings. Maher v. Railroad, 64 Mo. 276; Frick v. Railroad, 75 Mo. 609. If the bell had been rung, as required by section 806 of the Revised Statutes, it would have been heard by plaintiff before the car struck him. For there is no pretense that the place where he crossed was more than fifty to a hundred feet south of the avenue. Frick v. Railroad, 75 Mo. 601, 609; Sonier v. Railroad, 141 Mass. 10; Petty v. Railroad, 88 Mo. 319. (2) Even if it had been conclusively shown that this was not a public crossing, nor a place where the public were accustomed to cross, nor on a public highway, still defendant was liable, and the law is as laid down in the second instruction. Though it be admitted that...

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