Hicks v. Pacific R.R.

• Decision Date: 30 April 1877
• Citation: 65 Mo. 34
• Parties: HICKS v. PACIFIC RAILROAD, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 34

HICKS

v.PACIFIC RAILROAD, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

E. A. Andrews, for the motion.

HENRY, J.

Appellant's attorney files an argument on a motion for rehearing, which, although able and plausible, has failed to convince us that the case has been improperly decided.

The errors assigned are:

First--That under the issues made by the pleadings and testimony, the Court refused to instruct the jury that plaintiff's right to be where he was when injured, affected the question of defendant's liability under the facts and circumstances of the case; and Second--That the Court below erred in instructing the jury upon its own motion, and especially upon the question of plaintiff's contributory negligence.

In commenting on the case of Gillis v. Penn. R. R., 59 Penn. St. 129, there was no purpose to reflect upon the distinguished judge who prepared the opinion in that case, of whose eminent ability, everywhere acknowledged, we have the highest appreciation. We find no fault with the case, but on the contrary think it was properly decided. The counsel for appellant complains that we quoted and italicised but one line of the opinion. We did this because it is that one line which, applied to the case at bar, asserts a proposition which in our judgment is not the law. It may not have been a dictum in that case, in the connection in which it was used, but wrested from its context it is broad enough to give countenance to a doctrine, which the eminent judge who prepared that opinion we are satisfied would not hold in such a case as this. If we assent to the doctrine so strenuously and ingeniously contended for by the counsel, we must overrule every case decided by this Court, in which railroad companies have been held liable for injuries to persons or stock trespassing on their roads, which could have been avoided by the exercise of ordinary care and watchfulness by their employees running their trains. It is also insisted that the opinion of the Court is in conflict with the case of Straub v. Soderer, 53 Mo. 38. That case was not overlooked, and we repeat what was said in the opinion, that “the cases cited to show that where one permits another to go on or over his premises, the former is not liable to the latter for injuries received from falling into a pit which had been left open on the premises, and similar accidents, are not in point.” We have no fault to find with the decision in that case, but it is decided upon a principle not applicable to the case at bar, and...