9 S.W. 577 (Mo. 1888), Erwin v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:9 S.W. 577, 96 Mo. 290
Opinion Judge:Black, J.
Party Name:Erwin v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Bennet Pike for appellant. Henry Boemler for respondent.
Judge Panel:Black, J. Ray, J., absent.
Case Date:November 12, 1888
Court:Supreme Court of Missouri

Page 577

9 S.W. 577 (Mo. 1888)

96 Mo. 290



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

Supreme Court of Missouri

November 12, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Reversed and remanded.

Bennet Pike for appellant.

(1) The demurrer to the evidence at the close of plaintiff's case should have been sustained. Morrissey v. Railroad, 126 Mass. 377; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Taylor v. Railroad, 86 Mo. 458; Fox v. Railroad, 85 Mo. 679. (2) The instructions given at the instance of plaintiff and upon the court's own motion were erroneous. David v. Chicopee, 116 Mass. 93; Johnson v. Railroad, 125 Mass. 75; Wyatt v. Railroad, 62 Mo. 411. (3) The refusal of defendant's instruction was error. Zimmerman v. Railroad, 71 Mo. 476; Isabel v. Railroad, 60 Mo. 475; Harlan v. Railroad, 64 Mo. 480; Nelson v. Railroad, 68 Mo. 593; Cagney v. Railroad, 69 Mo. 416.

Henry Boemler for respondent.

(1) The defendant's negligence and the injuries to the deceased being shown, it was competent to infer that the latter was occasioned by the former and the connection between the two was properly left to the jury. Keim v. Transit Co., 90 Mo. 314; Persinger v. Railroad, 82 Mo. 196; Taylor v. Railroad, 83 Mo. 386. (2) Although defendant, at the close of plaintiff's case, offered a demurrer, it waived the point by going on with the case. The only permissible inquiry now is whether there is any evidence at all to sustain the verdict. Goodger v. Finn, 10 Mo.App. 226; Bolt & Iron Co. v. Brue, 8 Mo.App. 594. (3) When the undisputed facts relied on to establish contributory negligence are such as may, in the judgment of sensible men, lead to different conclusions thereon, the question should be submitted to the jury. Petty v. Railroad, 88 Mo. 306; Drain v. Railroad, 86 Mo. 574; Fink v. Furnace Co., 82 Mo. 276; Keenig v. Railroad, 12 Mo.App. 327; Barry v. Railroad, 92 N.Y. 289. (4) A failure to perform a duty enjoined by statute or ordinance is negligence, as matter of law, for which a recovery may be had by any person injured by reason thereof. Keim v. Transit Co., 90 Mo. 321; Drain v. Railroad, 86 Mo. 574; Mertz v. Railroad, 88 Mo. 672; Bowman v. Railroad, 85 Mo. 533; Johnson v. Railroad, 77 Mo. 551; Karle v. Railroad, 55 Mo. 476; Railroad v. Dunn, 78 Ill. 197.

Black, J. Ray, J., absent.


Page 578

[96 Mo. 292] Black, J.

A train of defendant's cars, consisting of a locomotive and three freight cars, ran over and killed the plaintiff's son, a lad between eleven and [96 Mo. 293] twelve years of age, in the corporate limits of the city of St. Louis. This is a suit by the mother, the father being dead, to...

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