Kenney v. Kansas City, Pittsburg & Gulf Railroad
Missouri Court of Appeals
Appeal"from the Newton Circuit Court. — Hon. Jno. C. Lamson, Judge. There is only one theory upon which the plaintiff would be entitled to recover in this action, and that is that in building the embankments across the slough, the railroad company was negligent, its act, was in no sense unlawful; there is a marked distinction between an unlawful act, and a negligent act.
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Appeal"from the Newton Circuit Court. — Hon. Jno. C. Lamson, Judge. There is only one theory upon which the plaintiff would be entitled to recover in this action, and that is that in building the embankments across the slough, the railroad company was negligent, its act, was in no sense unlawful; there is a marked distinction between an unlawful act, and a negligent act. The first is the doing of something prohibited by law, while the second —the negligent act — is the “failure to do what a reasonable and prudent person would ordinarily- have done under the circumstances of the situation, or…
1Opinion of the CourtBiggs, J.
— The railroad which is operated by the defendant extends through the valley of Shoal creek in Newton county. Shoal creek drains a large area of country. The valley varies in width from one half to one mile. What is known as the Ford farm is situated in this valley. It is located on an island formed by Shoal creek and a slough. It has for its southern and western boundaries the main channel of the creek, and the slough forms its eastern boundary. At this point Shoal creek runs in a northwesterly direction. The slough puts out from the creek at the southern boundary of the farm; It runs east…
2Cases cited2 opinions
- Jones v. HannovanSupreme Court of Missouri · 1874
- James v. Kansas City, Pittsburg & Gulf RailroadMissouri Court of Appeals · 1897
3Cited by5 opinions
- Perkins v. Vermont Hydro-Electric Corp.Supreme Court of Vermont · 1934
- Kennedy v. Union Electric Co.Supreme Court of Missouri · 1948
- Goll v. Chicago & Alton Railway Co.Supreme Court of Missouri · 1917
- Town of Bennington v. Fillmore & SladeSupreme Court of Vermont · 1925
- Cohen & Stryck v. Home Telephone Co.Court of Appeals of Kentucky · 1918