Carter v. Norfolk & Western Railway

Although I agree with the determination by the majority regarding the impropriety of the withdrawal instruction, I am constrained to dissent from the remanding of this case for a new trial. Having found in favor of plaintiff on one of his alleged trial court errors, we must address the issue of submissibility before remanding the case. Grippe v. Momtazee, 696 S.W.2d 797, 799 (Mo. banc 1985).

The Missouri Supreme Court has never deviated from the rule that recovery may not be had against a railroad by a trespasser jumping on and off a moving train upon a theory of primary negligence. As stated…