106 S.W. 1096 (Mo.App. 1908), Rogers v. Rundell

Citation:106 S.W. 1096, 128 Mo.App. 10
Opinion Judge:BROADDUS, P. J.
Party Name:NELLIE ROGERS, Respondent, v. M. W. RUNDELL et al., Appellants
Attorney:F. L. Farlow and A. E. Spencer for appellants. W. C. Irwin, W. J. Owen and Thomas & Hackney for respondent.
Case Date:January 06, 1908
Court:Court of Appeals of Missouri
 
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Page 1096

106 S.W. 1096 (Mo.App. 1908)

128 Mo.App. 10

NELLIE ROGERS, Respondent,

v.

M. W. RUNDELL et al., Appellants

Court of Appeals of Missouri, Kansas City

January 6, 1908

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Cause affirmed.

F. L. Farlow and A. E. Spencer for appellants.

(1) Exclusion of plaintiff's evidence was error. Mason v. Mining Co., 82 Mo.App. 367; Jones v. Lumber Co., 58 Ark. 125, 23 S.W. 679; Jackson v. Hardin, 83 Mo. 175; Schlicker v. Gordon, 19 Mo.App. 479. (2) Admission of defendant's evidence was error. Hill v. Sturgeon, 28 Mo. 323; Monahan v. Co., 58 Mo.App. 68; Benjamin v. Co., 50 Mo.App. 602; Line v. Mason, 67 Mo.App. 279; Hogan v. Co., 150 Mo. 36; Buckalew v. Railroad, 107 Mo.App. 586; Greenwell v. Crow, 73 Mo. 639. (3) Instruction numbered 5 was a proper declaration of law of this case. Deceased was an experienced miner and had helped cut and timber this drift. He knew the entire situation. Sinberg v. Falk Co., 98 Mo.App. 546; Bradley v. Railway Co., 138 Mo. 293; Winkler v. Co., 137 Mo. 394; Hurst v. Railroad, 163 Mo. 309. (4) Instruction numbered ten was also properly given, under the evidence in this case. Deceased knew the situation and the dangers thereof. The instruction was proper under the evidence. Lacey v. Oil Co., 129 Mo. 32; Bradley v. Railroad, 138 Mo. 293; Hurst v. Railroad, 163 Mo. 309; Fuglor v. Bothi, 117 Mo. 475; Minnier v. Railroad, 167 Mo. 99. It was not necessary to plead assumed risk. Dakan v. Co., 197 Mo. 238. (5) The court erred in refusing to direct the jury to find for defendants.

W. C. Irwin, W. J. Owen and Thomas & Hackney for respondent.

(1) The court erred on the trial of the cause in refusing to permit the witness Moon to answer. The witness was shown to be a miner of sixteen years' experience and it was a proper matter for expert testimony. Combs v. Roundtree Const. Co., 104 S.W. 77; Buckley v. Kansas City, 95 Mo.App. 189; Benjamin v. Railroad, 133 Mo. 288; Spencer v. Bruner, 103 S.W. 578. (3) The court committed error in the trial of the cause in permitting the question propounded to Norris Ashcraft by counsel for the defendants. Hurst v. Railroad, 163 Mo. 321. (4) The court committed error on the trial of the cause in giving instructions asked by the defendants and given by the court and especially in giving instruction numbered 10. Graci v. Hill O'Meara Const. Co., 102 S.W. 594; Hester v. Packing Co., 95 Mo. 23; Hun v. Railroad, 92 Mo. 440; Devlin v. Railroad, 87 Mo. 545; Thorp v. Railroad, 89 Mo. 650; Soeden v. Railroad, 100 Mo. 673; Cole v. Railroad, 183 Mo. 94; Daken v. Chase & Son Merc. Co., 197 Mo. 267. (5) The defendants' answer being a general denial only, neither the issue of contributory negligence nor assumed risk was in the case and it would have been error to have given a proper instruction.

OPINION

Page 1097

[128 Mo.App. 12] BROADDUS, P. J.

--The cause was tried before a jury and a verdict rendered in favor of the defendants, which upon motion of plaintiff was set aside. From the action of the court in setting aside the verdict the defendants appealed.

The suit is against the defendant for damages in the sum of $ 4,500, which plaintiff claims was the result of defendants' negligence, which caused the death of her husband Charles M. Rogers, a miner. The negligence alleged was, generally, in failing to properly cut and construct timbers or otherwise protect the drift from caving; in cutting the drift too wide and too high; in failing to furnish sufficient timbers and of sufficient size and quality to render the drift reasonably safe; in failing to properly place and secure said...

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