Muirhead v. Hannibal & St. Joseph Railroad

Missouri Court of Appeals

Muirhead v. Hannibal & St. Joseph Railroad

31 Mo. App. 578, 1888 Mo. App. LEXIS 211

DecidedJuly 2, 1888

StatusPublished

This text of 31 Mo. App. 578 (Muirhead v. Hannibal & St. Joseph Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Muirhead v. Hannibal & St. Joseph Railroad, 31 Mo. App. 578, 1888 Mo. App. LEXIS 211 (Mo. Ct. App. 1888).

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Opinion

Ellison, J.

This case was heretofore in this court and is found reported in 19 Mo. App. 634. The facts, as to the principal points relative to the wreck, may be learned by reference to that report.

On the trial below, the issue of negligence was restricted, by an instruction, to the question, whether defendant was negligent in using a switch rope to couple the derrick car into the train. It is conceded there was no drawhead in the derrick car and that it was not coupled with an iron link, but was coupled into the train by means of a large rope. The court gave instructions for plaintiff and defendant which we think properly covered tbe case. Numbers four, nine, twelve, sixteen, seventeen, eighteen, and nineteen offered by defendant were refused. We will not set them out, as they are of some length, but rest content with the statement that they were either not correct as applied to the case or were covered by those already given. There was a demurrer to the testimony at the close of plaintiff’s case [581]*581and afterwards at the close of the whole case. Both were refused and we think properly.

One ground of the motion for new trial is, that counsel'for plaintiff, in his address to the jury, during the temporary absence of the judge, said that others had recovered judgment for injury in the same accident and had gotten their money and that “ This case is the last of the Mohicans.” It does not appear that objection was made to this. The court’s attention was not called to it, so that, if considered necessary, action on the court’s part might have been taken in regard thereto.

An examination of all the objections made to the judgment leads us to the conclusion that it should be affirmed and it is so ordered.

Hall, J., concurs.

Philips, P. J.

Without expressing any opinion upon the merits of the question involved, arising on the instructions in this case, it is enough to say, since the first opinion of this court herein was delivered the Supreme Court has decided the case of Tabler v. H. & St. J. Ry. Co., 93 Mo. 79, growing out of the same accident; which decision is apparently in conflict with the view taken by this court in its two opinions. Por this reason the cause will have to be certified to the Supreme Court, which is' accordingly so ordered.

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Ellison, J.

This case was heretofore in this court and is found reported in 19 Mo. App. 634. The facts, as to the principal points relative to the wreck, may be learned by reference to that report.

On the trial below, the issue of negligence was restricted, by an instruction, to the question, whether defendant was negligent in using a switch rope to couple the derrick car into the train. It is conceded there was no drawhead in the derrick car and that it was not coupled with an iron link, but was coupled into the train by means of a large rope. The court gave instructions for plaintiff and defendant which we think properly covered tbe case. Numbers four, nine, twelve, sixteen, seventeen, eighteen, and nineteen offered by defendant were refused. We will not set them out, as they are of some length, but rest content with the statement that they were either not correct as applied to the case or were covered by those already given. There was a demurrer to the testimony at the close of plaintiff’s case [581]*581and afterwards at the close of the whole case. Both were refused and we think properly.

One ground of the motion for new trial is, that counsel'for plaintiff, in his address to the jury, during the temporary absence of the judge, said that others had recovered judgment for injury in the same accident and had gotten their money and that “ This case is the last of the Mohicans.” It does not appear that objection was made to this. The court’s attention was not called to it, so that, if considered necessary, action on the court’s part might have been taken in regard thereto.

An examination of all the objections made to the judgment leads us to the conclusion that it should be affirmed and it is so ordered.

Hall, J., concurs.

Philips, P. J.

Without expressing any opinion upon the merits of the question involved, arising on the instructions in this case, it is enough to say, since the first opinion of this court herein was delivered the Supreme Court has decided the case of Tabler v. H. & St. J. Ry. Co., 93 Mo. 79, growing out of the same accident; which decision is apparently in conflict with the view taken by this court in its two opinions. Por this reason the cause will have to be certified to the Supreme Court, which is' accordingly so ordered.

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