88 Mo. App. 97 | Mo. Ct. App. | 1901
It is insisted “that on the undisputed facts the trial judge should have declared the plaintiff was not entitled to recover.” We are unable to sustain this view. In addition to the authorities cited for a contrary judgment when the case was before us on the former appeal, we have now a decision of the Supreme Court in Banc, fully committing that tribunal to the conclusion then reached by us. In the case of Morgan v. Wabash R’y Co., 159 Mo. 262, from tire two following propositions the Supreme Court deduced a conclusion of the liability of the defendant railway company. The first proposition, in the language of the writer of that opinion, is, to-wit: “There can be no doubt, under the evidence, that the death of the plaintiff’s husband resulted from the negligence of the defendant’s servants in charge of the train, and the negligence of the deceased himself contributing thereto.” Secondly, in the language of the same judge, to-wit: “But conceding the contributory negligence of the plaintiff’s husband, we advance to the consideration of the question, is the defendant liable upon the ground that it failed to use the means at its hands to save the man, when by the exercise of ordinary care it would have discovered his peril in time to have done so ?” The decision which the court arrived at from the two foregoing premises, contains as complete and explicit an announcement of the rule that, notwithstanding his primary negligence, a plaintiff may recover for injuries proximately caused to him
The reasons for the adherence of this court to the general doctrine on this subject have been given by us in the case of Klockenbrink v. Meramec R’y Co., 81 Mo. App. 351, and cases cited, and need not again be restated.
It follows that a critical and able analysis by appellant’s counsel of some of the previous rulings of the Supreme Court of this State (Hogan v. R’y, 150 Mo. 36, and cases cited), tending to support its contention, can not be accepted by us in view of the later controlling expression of the views of that body, in accord with our own previous holding, set forth by the opinion in Banc in the case of Morgan v. Wabash R’y Co., supra.
II. When this case was here on the former appeal, we reversed it for the failure of the plaintiff to prove that the ordinance, whose violation by the defendant was claimed as one of the elements of negligence in the case, had not been shown to have been accepted by the defendant, following in our ruling the case of Sanders v. Southern Electric R’y Co., 147 Mo. 411, which was at that time the latest utterance of the Supreme Court on that subject. Our attention is now called to the fact that the Supreme Court, since our decision, seemed to have announced a contrary doctrine to that held in the Sanders case, by the ruling made in Jackson v. R’y, 157 Mo. 621. But, however this may be, on the present trial there was sufficient evidence showing the acceptance of the ordinance in question. The case, therefore, seems to have been tried in conformity to our views expressed on the former appeal and without the intervention of legal error.
The judgment herein is affirmed.