9 S.W. 580 (Mo. 1888), Loeffler v. Missouri Pacific Railway Co.

Citation:9 S.W. 580, 96 Mo. 267
Opinion Judge:Black, J.
Party Name:Loeffler v. The Missouri Pacific Railway Company, Appellant
Attorney:S. M. Breckinridge and M. F. Watts for appellant. A. R. Taylor and W. F. Broadhead for respondent.
Judge Panel:Black, J. Ray, J., absent.
Case Date:November 12, 1888
Court:Supreme Court of Missouri
 
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Page 580

9 S.W. 580 (Mo. 1888)

96 Mo. 267

Loeffler

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

November 12, 1888

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed.

S. M. Breckinridge and M. F. Watts for appellant.

(1) There is a fatal variance between the allegations of the petition and the proof. Waldhier v. Railroad, 71 Mo. 514; Schneider v. Railroad, 75 Mo. 295. (2) The demurrer to the evidence should have been sustained. The court erred in refusing to give the instruction asked at the close of plaintiff's case, to the effect that on the evidence under the pleadings plaintiff could not recover. Isabel v. Railroad, 60 Mo. 482; Renfro v. Railroad, 86 Mo. 302; Scoville v. Railroad, 81 Mo. 434; Taylor v. Railroad, 86 Mo. 457; Kelley v. Railroad, 11 Mo.App. 1; Houston v. Railroad, 59 Texas, 373; Hoover v. Railroad, 71 Texas, 503; 1 Thomp. on Neg. 429; Railroad v. Hummel, 44 Pa. 575; Mulherrin v. Railroad, 81 Pa. 366; Railroad v. Depew, 40 Ohio 121; Hallihan v. Railroad, 71 Mo. 113; Rains v. Railroad, 71 Mo. 164. (3) The court erred in giving the second instruction for plaintiff. Yarnell v. Railroad, 75 Mo. 575; Goodwin v. Railroad, 75 Mo. 73. (4) The eighth, ninth and eleventh instructions asked by defendant should have been given. (5) Defendant is entitled to judgment non obstante veredicto.

A. R. Taylor and W. F. Broadhead for respondent.

Black, J. Ray, J., absent.

OPINION

[96 Mo. 268] Black, J.

The plaintiff received the injuries on account of which he recovered a judgment for four thousand dollars, whilst in the tunnel leading from the Union Depot, in St. Louis, to the bridge. The tunnel railroad consists of two tracks, separated by a wall of masonry eight or ten feet thick and from which wall the arches are constructed. There are open passage-ways through the wall every thirty or forty feet. At a point six or eight blocks from the east entrance, there is no division wall for a distance of forty feet, and here the roof is [96 Mo. 269] supported by girders, and in the upper part of this open space is located a fan which exhausts the smoke from the tunnel. The defendant operated the tunnel road at the time in question, and had the plaintiff and others engaged in putting in a sewer under one of the tracks. This work was carried on at night only, and when the...

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