Legal Opinion · Dissent

Dutcher v. Wabash Railroad

Supreme Court of Missouri

Decided March 1, 1912Published

Appeal from Adair Circuit Court. — Hon. Nat M. Shelton, Judge. 1. The court erred in overruling defendant’s demurrer at the close of all the evidence, a.

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Appeal from Adair Circuit Court. — Hon. Nat M. Shelton, Judge. 1. The court erred in overruling defendant’s demurrer at the close of all the evidence, a. It was admitted hy plaintiff’s counsel on the trial that defendant’s track was inclosed by lawful fences and cattle-guards; there was no evidence tending to prove that the track was used by pedestrians as a public high-' way; or that defendant acquiesced in occasional use of it by pedestrians; the court so found and declared by defendant’s instruction 13, and that plaintiff was a trespasser by defendant’s instruction 14. No exceptions were…

1Dissent

DISSENTING OPINION.

WOODSON, J.

— On motion for a new hearing in this cause, one of the judges dissented from the Divisional opinion, and in consequence thereof, the cause was transferred to court in Banc; and upon reargument a majority of the judges dissented from the Divisional opinion and ordered Brother Lamm to write the opinion for the court, which he has done in a very able manner.

*178But after a careful consideration of Ms opinion, I am forced to dissent therefrom.

It seems to me that the error my associates have fallen into is in assuming that the employees in charge of the train upon the…

2Cases cited66 opinions

  1. Little v. HackettSupreme Court of the United States · 1886
  2. Morgan v. Wabash RailroadSupreme Court of Missouri · 1900
  3. Robinson v. ConeSupreme Court of Vermont · 1850
  4. H. & T. C. R'y Co. v. SympkinsTexas Supreme Court · 1881
  5. Dyerson v. Union Pacific RailroadSupreme Court of Kansas · 1906

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