Maschek v. St. Louis R.R. Co.

• Decision Date: 31 October 1879
• Citation: 71 Mo. 276
• Parties: MASCHEK v. ST. LOUIS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 276

MASCHEK

v.ST. LOUIS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

REVERSED.

Smith P. Galt for appellant.

Jos. Jecko for respondent.

NAPTON, J.

The only point made in this case which is thought by this court necessary to be decided is, whether the demurrer to the plaintiff's evidence should have been sustained. It is conceded that if the testimony conflicts, or if there is any from which a jury may fairly deduce a liability, the case must go to the jury. But where there is no evidence to authorize a verdict, and it can only be traced to that sympathy which jurors, and I may add judges, too insensibly feel for the weak in a contest with the powerful, we have heretofore considered it the duty of this court, however distasteful it may be, to interfere. The conclusion we have reached on this point renders unnecessary any investigation of the other two points made by the appellant, defendant below, in regard to the rejection of certain questions put by him during the trial, and in regard to the rejection of an instruction concerning accident or misadventure.

There was no evidence offered by the defendant in this case, and the principal witness for the plaintiff, indeed it might be said the only one of any importance, was a passenger on the car by the name of McIlvain. He was returning from his residence to the post-office, where he was a clerk, and was standing by the driver when the accident occurred, about one o'clock. The grade of the track on Carondelet avenue, at the point where the child was killed, was slightly on the decline going north. Witness was on the west side of the driver, and hearing the driver shout “look out,” “hold on,” or “stop,” he turned his face toward the east, and saw the little boy running for the track about six feet ahead of the mules and fr feet east of the track, the driver with right hand on the brakes and his left pulling on the lines with such force that the tongue went up over the heads of the mules. When the driver shouted to the boy, he kept right on until he got to the middle of the track, where he turned his face north, got under the tongue which was thrown up by the pull of the driver, until he got to the axle, or where the tongue was so low that it struck him, and he fell on his face and was run over by one of the hind wheels. The driver was all this time trying his best to stop the car, and it appeared to the witness that all this occurred...