80 S.W. 897 (Mo. 1904), Caldwell v. Missouri Pacific Ry. Co.

Citation:80 S.W. 897, 181 Mo. 455
Opinion Judge:BURGESS, J.
Attorney:Elijah Robinson for appellant. John N. Southern and S.W. Hilt for respondent.
Case Date:May 10, 1904
Court:Supreme Court of Missouri

Page 897

80 S.W. 897 (Mo. 1904)

181 Mo. 455




Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.


Elijah Robinson for appellant.

(1) The court should have directed a verdict for defendant: There was not a particle of evidence in the case tending to show negligence on the part of the defendant; and when there is no substantial evidence to establish the facts which it is incumbent upon the plaintiff to prove, the court should direct a verdict for the defendant. Powell v. Railroad, 76 Mo. 80; Landis v. Hamilton, 77 Mo. 554; Jackson v. Hardin, 83 Mo. 175; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 338; Havens v. Railroad, 155 Mo. 216. Where the evidence is of such character that a verdict must necessarily be based upon mere guess-work or conjecture upon the part of the jury, the court should direct a verdict for the defendant. Moon v. Railroad, 28 Mo.App. 262; Peck v. Railroad, 31 Mo.App. 123; Railroad v. Shertle, 97 Pa. St. 450. The simple fact of the accident having occurred is not evidence of negligence. Cooley v. Torts (2 Ed.), 92; Sheldon v. Sherman, 42 N.Y. 484; Roynton v. Rees, 9 Pick. 527; Express Co. v. Smith, 33 Ohio St. 511; Burton v. Davis, 15 La. Ann. 448; Brown v. Collins, 53 N.H. 442; Hanlon v. Ingram, 3 Ia. 81; Richards v. Rough, 53 Mich. 212. The rule res ipsa loquitur does not apply in this case. Gallagher v. Edison Co., 72 Mo.App. 576. (2) The evidence shows clearly that plaintiff's husband was guilty of contributory negligence, without which the accident would not have occurred. Railroad v. Estes, 37 Kan. 731; Lothrop v. Railroad, 150 Mass. 423; Culbertson v. Railroad, 88 Wis. 569; Burk v. Edison Co., 89 Hun 501.

John N. Southern and S.W. Hilt for respondent.

(1) Plaintiff's prima facie case was ample to take the case to the jury, but had it not been, the appellant by not standing on its demurrer and declining to introduce testimony on its own behalf, cured the defect. Peacock, whose deposition was read by appellant, testified that Caldwell did not give any signal from between the cars. When defendant introduced this evidence the consideration of the demurrer extended so as to include it and any other facts in his testimony and the testimony of any other witness in the case. Gallagher v. Edison Co., 72 Mo.App. 578; Hilz v. Railroad, 101 Mo. 36; Jennings v. Railroad, 112 Mo. 268; Whitaker, Smith on Negligence, chap. 6, pp. 419, 429; King v. Oil Co., 81 Mo.App. 155; Clark v. Railroad, 93 Mo.App. 456; Mirrielees v. Railroad, 163 Mo. 486. (2) The demurrer to plaintiff's evidence was properly overruled. There was uncontradicted evidence from which the jury could properly infer negligence on the part of the defendant. Keown v. Railroad, 141 Mo. 87; Land and Lumber Co. v. Tie Co., 79 Mo.App. 543; Moore v. Railroad, 73 Mo. 438. (a) Negligence is not a fact that is subject to direct proof, but is an inference from facts put in evidence, and when different minds might honestly draw different conclusions from the evidence the case should properly be left to the jury. Baird v. Railroad, 146 Mo. 282; Degge v. Express Co., 64 Mo.App. 102; Green v. Cooperage Co., 50 Mo.App. 202; Hamed v. Railroad, 51 Mo.App. 482; Chum v. Railroad, 55 Mo.App. 163; Reed v. Railroad, 94 Mo.App. 38...

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