10 S.W. 484 (Mo. 1889), Durant v. Lexington Coal Mining Co.

Citation:10 S.W. 484, 97 Mo. 62
Opinion Judge:Black, J.
Party Name:Durant v. Lexington Coal Mining Company, Appellant
Attorney:Wallace & Chiles for appellant. Graves & Aull for respondent.
Judge Panel:Black, J. Barclay, J., concurs in the result.
Case Date:February 04, 1889
Court:Supreme Court of Missouri
 
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Page 484

10 S.W. 484 (Mo. 1889)

97 Mo. 62

Durant

v.

Lexington Coal Mining Company, Appellant

Supreme Court of Missouri

February 4, 1889

Appeal from Lafayette Circuit Court. -- Hon. J. P. Strother, Judge.

Affirmed.

Wallace & Chiles for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence. The statute (Laws 1881, p. 165) only applies to persons descending into or ascending out of a shaft and not one who was working down in the shaft. (2) Much of the evidence introduced by plaintiff, over defendant's objections, went to the policy of the legislature in passing the act in question, and as to whether its provisions in regard to boiler-iron covers to cages were practicable, and not as to whether the requirements of the act had been violated. Session Acts 1881, p. 167, sec. 6; 1 Green. Ev. (4 Ed.) secs. 51, 52; Frederick v. Allgaier, 88 Mo. 598, 602; State v. Blunt, 91 Mo. 503; Stump v. Mueller, 17 Mo.App. 288-9. (3) The party against whom illegal evidence is admitted can, by instruction, if he is willing to adopt that course, correct or ameliorate the injury done him thereby, but the party introducing such illegal evidence cannot so experiment and then claim to remedy the injury done the other side by withdrawing such illegal and prejudicial evidence by his own instruction. Gutzweiler v. Lackman, 39 Mo. 91. (4) The court erred in rejecting evidence offered by defendant.

Graves & Aull for respondent.

(1) The act of 1881 (Laws, pp. 165-171) includes the plaintiff and defendant, and authorizes this action. Appellant's construction of this act is narrow and illiberal. The title of the acts forbids such construction; and it is competent to refer to the title for purposes of construction. Spiva v. Mining Co., 88 Mo. 71. For direct construction of same statute covering the case at bar, see Coal Co. v. Taylor, 81 Ill. 596; Coal Co. v. Healer, 84 Ill. 126; Coal Co. v. Wiggerhaus, 13 N.W. 649; Ins. Co. v. Albert, 39 Mo. 181; Fell v. Coal Co., 23 Mo.App. 224. (2) If some of the evidence introduced by plaintiff was improper, the same was withdrawn from the jury by instruction. Griffith v. Hanks, 91 Mo. 116; Bank v. Murdock, 62 Mo. 70. (3) The court committed no error in the reception or rejection of testimony, nor in giving or refusing of instructions, and the judgment should be affirmed.

Black, J. Barclay, J., concurs in the result.

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