Coleman v. Himmelberger-Harrison Land & Lumber Co.
Missouri Court of Appeals
Appeal from New Madrid Circuit Court. — Ho». H. G. Riley, Judge. (1) The court should have stricken out the plaintiffs’ amended petition, because it was inconsistent with, contradictory of, and a departure from the allegations of the original petition. The original petition charges that the accident occurred on the defendant’s “Tram-road” because of the negligence of the engineer, a fellow-servant.
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Appeal from New Madrid Circuit Court. — Ho». H. G. Riley, Judge. (1) The court should have stricken out the plaintiffs’ amended petition, because it was inconsistent with, contradictory of, and a departure from the allegations of the original petition. The original petition charges that the accident occurred on the defendant’s “Tram-road” because of the negligence of the engineer, a fellow-servant. The amended petition charges that it occurred on the St. Louis & G-ulf Railway because of the negligence of the defendant in not blocking the frogs of said railway. This was an entire change of the…
1Opinion of the CourtBland, P. J.
(after stating the facts as above).
—1. The death of plaintiffs’ son alone did not constitute a cause of action against the defendant. His death, if caused by the negligence of defendant, would constitute a cause of action. The two things must concur and co-exist death, and death caused by the negligence of the defendant, to entitle plaintiffs to recover. The cause of action, therefore, was the death caused by defendant’s negligence. In both petitions the same death is relied on as one of the elements going to constitute the cause of action, and the negligence of defendant as causing the death…
2Cases cited9 opinions
- City of Pekin v. McMahonIllinois Supreme Court · 1895
- Barney v. Hannibal & St. Joseph RailroadSupreme Court of Missouri · 1895
- Rains v. St. Louis, Iron Mountain & Southern Railway Co.Supreme Court of Missouri · 1879
- Ross v. Cleveland & Aurora Mineral Land Co.Supreme Court of Missouri · 1901
- Leahy v. DavisSupreme Court of Missouri · 1894
4 more not listed; retrieve them via the Exa API.
3Cited by11 opinions
- Hildreth v. KeyMissouri Court of Appeals · 1960
- Hertz v. McDowellSupreme Court of Missouri · 1948
- Nuckols v. Andrews Investment CompanyMissouri Court of Appeals · 1962
- Obermeyer v. Logeman Chair Manufacturing Co.Missouri Court of Appeals · 1906
- McCullough v. W. H. Powell Lumber Co.Missouri Court of Appeals · 1919
6 more not listed; retrieve them via the Exa API.