Rafferty v. Missouri Pacific R.R. Co.
| Decision Date | 10 June 1884 |
| Citation | 15 Mo.App. 559 |
| Parties | JAMES D. RAFFERTY ET AL., Respondents, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, LUBKE, J.
Reversed and remanded.
BENNETT PIKE, for the appellant.
R. CRAWFORD, for the respondent.
This was an action by husband and wife against a railroad corporation for damages for the death of the minor child of plaintiffs, occasioned by the negligence of defendant's servants. The answer was a general denial, and an affirmative defence of contributory negligence.
The testimony tended to show that plaintiffs, at the time of the accident, lived on South Third Street, in St. Louis, between Convent Street and Chouteau Avenue. The deceased was a boy of eleven years and a half old at the time of the accident, and resided with his parents. On the 19th of October, 1881, the boy left the house in the morning, and was brought back a corpse in about an hour and a half. On the Levee, about two blocks from the residence of plaintiffs, are four parallel tracks of defendant's road. A box car was standing on one of these tracks, and deceased had climbed on to the top of this car, and was standing close to the edge of it, looking east, when a train of box cars on the same track, pushed by a locomotive in charge of defendant's servants, approaching from the north, struck the car on which deceased was standing.
The shock threw him off the car, and he fell between the car on which he had been standing and the car which struck it.
Two wheels of the latter car passed over him, and he died in a few minutes after he was taken out from under this car. No bell was being sounded on the approaching train, nor was there any brakeman upon the train. The train was stopped by a man upon an adjoining track who was engaged in unloading a flat car. He saw the boy fall, and had time to jump on to the moving train and set the brakes so as to stop the train before the northern wheels of the car that ran over the boy touched his body. The eye-witnesses to the accident were this man and two wagon drivers. None of them observed the approaching train until they heard the stroke of the meeting of the cars. It is evident that the train which was shoved against the stationary car was moving slowly. The evidence is indefinite as to the length of the moving train. It consisted of several box cars. One witness speaks of six. The two drivers who saw the accident were opposite the point of collision at the time, and on the other tracks. Plaintiff introduced ordinance of the city of St. Louis, No. 11,668, to the effect that, when any car propelled by steam power is moving within the city limits, the bell of the engine shall be kept constantly ringing, and if any cars are backed, a man shall be stationed at the end of the car furthermost from the engine, and no freight train shall be moved without experienced brakemen at their posts to see danger signals; and making the violations of these provisions a misdemeanor.
Defendants objected to the introduction of this ordinance. Defendant also objected to the introduction of any evidence, on the ground that the petition states no cause of action. At the close of plaintiff's case, defendant demurred to the evidence. This instruction was refused. Defendant asked no further instruction. The cause was given to the jury with a series of instructions asked by plaintiff. The jury found for the plaintiff and assessed his damages at $2,500, and there was judgment accordingly.
After the verdict was received, defendant moved for judgment for defendant upon the verdict, and plaintiff moved that judgment upon the verdict be entered for $5,000. The motion of defendant was overruled. Plaintiffs withdrew their motion, and moved for judgment in accordance with the verdict; which motion was sustained.
Under the provision of the damage act, plaintiffs were entitled to recover the sum of $5,000 or nothing; and so the jury was correctly and plainly instructed by the court. Nevertheless, the jury, disregarding the law of the case as given to them by the court, and treating the action as if it had been one falling under section 2123, and not under section 2121, of the damage act, under some theory, as we must suppose, of regarding mitigating circumstances, and allowing the negligence of deceased to go in reduction of damages, chose to take the matter into their own hands and to substitute their own arbitrary notions of rough justice for the directions of the judge as to the law which it was their sworn duty to obey. This is the very definition of a perverse verdict. Hawkins v. Alder, 18 C. B. 640. And where such a verdict is rendered, we think that it is the duty of the trial court to grant a new trial, unless it plainly appears that a new trial...
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Marsh v. Kansas City Southern Railway Company
...to say, and it was not said, that the party entitled to that sum could not sue for nor accept less. Defendant also cites us to Rafferty v. Railway, 15 Mo.App. 559. But case in no way involves the question presented in the one at bar. That case involved the return of a verdict for a less sum......
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...compensation for the loss sustained and has been construed by the courts of Missouri as penal. Philpott v. Railway, 85 Mo. 164;Rafferty v. Railway, 15 Mo. App. 559;Young v. Railway, 227 Mo. 307, 127 S. W. 19. But no claim is made under section 5425 of the Missouri Revised Statutes, and inde......
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Marsh v. Kansas City Southern Ry. Co.
...to say, and it was not said, that the party entitled to that sum could not sue for nor accept less. Defendant also cites us to Rafferty v. Ry. Co., 15 Mo. App. 559, but that case in no way involves the question presented in the one at bar. That case involved the return of a verdict for a le......