Fisher v. Missouri Pac. Ry. Co.

• Decision Date: 08 November 1886
• Citation: 23 Mo.App. 201
• Parties: ANDREW FISHER, Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent.
• Court: Kansas Court of Appeals

23 Mo.App. 201

ANDREW FISHER, Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent.

Court of Appeals of Missouri, Kansas City.

November 8, 1886

APPEAL from Henry Circuit Court, HON. JAMES B. GANTT, Judge.

Reversed and remanded.

The case is stated in the opinion.

MCBETH & LADUE, for the appellant.

I. The court erred in sustaining defendant's demurrer to the evidence, and withdrawing the case from the jury. Moberly v. Railroad, 17 Mo.App. 518; Cannon v. Moore, 17 Mo.App. 92; Brink v. Railroad, 17 Mo.App. 177; Peart v. Railroad, 19 Am. & Eng. Railroad Cases 233; Johnson v. Railroad, 77 Mo. 546; 80 Mo. 335.

II. The court erred in refusing to set aside its judgment and ruling sustaining demurrer to evidence, and in refusing to grant a new trial. See authorities above cited.

WM. S SHIRK and THOS. G. PORTIS, with THOS. J. PORTIS, for the respondent.

I. If from the plaintiff's own evidence, his contributory negligence plainly appears, he cannot recover. It does so appear in this case. The demurrer to the plaintiff's evidence was, therefore, rightly sustained. Hixon v Railroad, 80 Mo. 335; Powell v. Railroad, 76 Mo. 80; Kelly v. Railroad, 75 Mo. 138; Turner v. Railroad, 74 Mo. 602; Zimmerman v. Railroad, 71 Mo. 476; Fletcher v. Railroad, 64 Mo. 484.

II. The cases in the 17 Mo. Appeal Reports are not, in our judgment, at all in point; nor is the case of Johnson v. Railroad (77 Mo. 546). The latter case is cited in Hixon v. Railroad (80 Mo. 341), to distinguish it from cases like this.

ELLISON J.

This action was instituted in the circuit court of Henry county, Missouri, to recover the sum of two thousand dollars damages for an alleged injury to appellant caused by respondent, its agents, and its servants, carelessly and negligently operating its railway, and running a train of cars through the city of Clinton on its railway at an unlawful and dangerous rate of speed, and without ringing a bell, sounding a whistle, or giving any warning whatever, whereby appellant was injured.

The answer was a general denial and contributory negligence. The defendant, at the close of plaintiff's case interposed a demurrer to the testimony which was sustained by the trial court, and plaintiff appealed.

The abstracts as presented by the contending parties in this cause do not agree as to the testimony adduced at the trial and we have examined the record proper to ascertain its true import. Our conclusion is that plaintiff is entitled to the judgment of a jury on the case he has presented. He was engaged in driving a delivery wagon in the town of Clinton, through which corporation the defendant's road runs. He testifies that on approaching the track, he checked his horse and looked and listened for a train; that seeing or hearing none he attempted to cross over, but his wagon was struck by one of defendant's engines, then passing at a rapid rate of speed, without ringing the bell or sounding the whistle. He did not bring his horse to a full stop, but his evidence tended to show that to be unnecessary, as there being a fresh snow on the ground, the wagon was making no noise. He...