Matthews v. Missouri Pacific Railway Co.
Missouri Court of Appeals
Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge. ' As lessee, the defendant could not be liable, without notice, or knowledge, of the existence of the nuisance. Pinney v. Berry, 61 Mo. 359; Dickson v. Railroad, 71 Mo. 575; Wayland v. Railroad, 75 Mo. 548. The first instruction given for the plaintiff is erroneous. It takes from the consideration of the jury the finding of the controverted fact whether Brooklyn avenue was a public highway or not.
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Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge. ' As lessee, the defendant could not be liable, without notice, or knowledge, of the existence of the nuisance. Pinney v. Berry, 61 Mo. 359; Dickson v. Railroad, 71 Mo. 575; Wayland v. Railroad, 75 Mo. 548. The first instruction given for the plaintiff is erroneous. It takes from the consideration of the jury the finding of the controverted fact whether Brooklyn avenue was a public highway or not. The instruction covers the whole case, and yet omits the question of negligence on the part of the plaintiff, as well as on the part of…
1Concurrence
RoMBauek, J.,
delivered a concurring opinion.
We all concur in the result reached in the foregoing opinion. While the language used therein sufficiently separates those parts of the opinion, which express Judge Thompson’s individual views, from those wherein he expresses the views of his associates, or the court, yet there is one subject of great practical importance discussed therein, which requires a detailed comment.
It has always been a rule of practice, in this state, that the court can not assume, in its instructions to the jury, the existence of controverted facts, whether such facts are…
2Cases cited20 opinions
- Sawyer v. Hannibal & St. Joseph RailroadSupreme Court of Missouri · 1866
- Peck v. RitcheySupreme Court of Missouri · 1877
- Carroll v. Missouri Pacific Railway Co.Supreme Court of Missouri · 1885
- Gerren v. Hann. & St. Joe. R. R.Supreme Court of Missouri · 1875
- Maxwell v. Hannibal & St. Joseph RailroadSupreme Court of Missouri · 1884
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