Mabrey v. Cape Girardeau & Jackson Gravel Road Co.
Missouri Court of Appeals
Appeal from Cape Girardeau Circuit Court. — Hon. Henry 0. Riley, Judge. (1) The court erred in giving the instructions prayed for by the plaintiff, because there is no testimony showing that the plaintiff’s stomach or bowels was injured. His petition charges that the injury was done to his stomach and bowels. The testimony of all three of his physicians was that neither his stomach nor bowels was injured.
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Appeal from Cape Girardeau Circuit Court. — Hon. Henry 0. Riley, Judge. (1) The court erred in giving the instructions prayed for by the plaintiff, because there is no testimony showing that the plaintiff’s stomach or bowels was injured. His petition charges that the injury was done to his stomach and bowels. The testimony of all three of his physicians was that neither his stomach nor bowels was injured. He can not sue for one injury and recover for another and different one. He can not make one case by his pleadings ■ and recover on a different state of facts. The testimony is not at…
1Opinion of the CourtGoode, J.
Respondent was injured by the overturning of a farm wagon in which he was riding with his father and brother along a turnpike or toll road belonging to the defendant company, and which runs between the city of Gape Girar-deau and the town of Bufordville. At the point where the *599injury occurred, tbe roadbed was in a narrow valley or depression, witb sloping hillsides on either side of it, down which water flowed during a rain-fall with the result, it seems, of causing a washout or ditch on the south side of the road, some seven feet wide and four feet deep.
The parties in the wagon had been in…
2Cases cited13 opinions
- Texas & Pacific Railway Co. v. BighamTexas Supreme Court · 1896
- Railroad Co. v. BarronSupreme Court of the United States · 1867
- City of Chicago v. MajorIllinois Supreme Court · 1857
- Browning v. Wabash Western Railway Co.Supreme Court of Missouri · 1894
- The" City of Panama"Supreme Court of the United States · 1880
8 more not listed; retrieve them via the Exa API.
3Cited by22 opinions
- State ex rel. United Railways Co. v. ReynoldsSupreme Court of Missouri · 1914
- Wilbur v. Southwest Missouri Electric Railway Co.Missouri Court of Appeals · 1905
- Piche v. HalvorsonSupreme Court of Minnesota · 1937
- Hutchison v. Moerschel Products Co.Missouri Court of Appeals · 1939
- Fishang v. Eyermann Contracting Co.Supreme Court of Missouri · 1933
17 more not listed; retrieve them via the Exa API.