Cooper v. St. Louis, Memphis & Southeastern Railway Co.
Missouri Court of Appeals
Appeal from Butler Circuit Court. — Son. Jas. L. Fort, Judge. Our contention is that the court erred in refusing to give defendant’s demurrer at the close of the evidence and also in overruling defendant’s motion in arrest of judgment. The petition is fatally defective.
Read the full summary
Appeal from Butler Circuit Court. — Son. Jas. L. Fort, Judge. Our contention is that the court erred in refusing to give defendant’s demurrer at the close of the evidence and also in overruling defendant’s motion in arrest of judgment. The petition is fatally defective. In order to make out a prima facie case of negligence against the appellant under this section for failing to construct ditches or drains it is necessary to aver in the petition and prove upon the trial, 1st. That the construction of the roadbed obstructed the natural flow of the surface water; 2d. There were ditches or…
1Opinion of the CourtBland, P. J.
(after stating the facts) — Í. At the close of plaintiff’s evidence and again at the close of all *145the evidence, defendant moved for a peremptory instruction to the jury to find for defendant. The contention is that the refusal of the court to grant these requests is erroneous in that the petition fails to state a cause of action for the reasons: first, the petition failed to allege that the construction of the roadbed obstructed the natural flow of surface water; and second, it fails to allege that there were ditches, or drains, or natural watercourses, into which said obstructed surface…
2Cases cited5 opinions
- State v. HardeleinSupreme Court of Missouri · 1902
- Goodson v. EmbletonMissouri Court of Appeals · 1904
- Cockrell v. McIntyreSupreme Court of Missouri · 1901
- King v. Exchange BankMissouri Court of Appeals · 1904
- Rawlins v. TimonsMissouri Court of Appeals · 1899
3Cited by4 opinions
- Smithpeter v. Wabash RailroadSupreme Court of Missouri · 1950
- Pace v. St. Louis Southwestern Railway Co.Missouri Court of Appeals · 1913
- Ranney v. St. Louis & San Francisco RailroadMissouri Court of Appeals · 1909
- Poncot v. St. Louis, Iron Mountain & Southern Railway Co.Missouri Court of Appeals · 1913