11 S.W. 736 (Mo. 1889), Grube v. Missouri Pacific Railway Co.

Citation:11 S.W. 736, 98 Mo. 330
Opinion Judge:Black, J.
Party Name:Grube v. The Missouri Pacific Railway Company, Appellant
Attorney:Thos. J. Portis and Adams & Bowles for appellant. Prosser Ray for respondent. L. E. Wyne, also, for respondent.
Judge Panel:Black, J. Barclay, J., concurs in the result.
Case Date:June 10, 1889
Court:Supreme Court of Missouri
 
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Page 736

11 S.W. 736 (Mo. 1889)

98 Mo. 330

Grube

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 10, 1889

Appeal from Cass Circuit Court. -- Hon. Noah M. Givan, Judge.

Affirmed.

Thos. J. Portis and Adams & Bowles for appellant.

(1) The court erred in admitting testimony of the witnesses for the plaintiff as to the general reputation of O'Neal as being an incompetent and unskilful servant. (2) The court erred in admitting isolated acts of negligence on the part of said O'Neal. Railroad v. Gilbert, 2 Am. & Eng. R. R. Cases, 233. (3) The court erred in admitting the ordinances of the City of Kansas in evidence. Rafferty v. Railroad, 91 Mo. 33; Heeney v. Sprague, 11 R. I. 456; Gaines v. Buford, 1 Dana (Ky.) 479-490; Meyers v. Railroad, 7 Am. & Eng. R. R. Cases, 406. (4) The court erred in giving the instructions asked by plaintiff. Rafferty v. Railroad, supra; Sullivan v. Railroad, 88 Mo. 169; Goetz v. Railroad, 50 Mo. 474; Fitzgerald v. Hayward, 50 Mo. 523; Frazier v. Railroad, 38 Pa. St. 104; Lannig v. Railroad, 49 N.Y. 521; Railroad v. Knittal, 33 Ohio St. 468; Ross v. Railroad, 8 F. 544. (5) The court erred in refusing the instructions asked by defendant. Carson v. Railroad, 76 Me. 244; Rafferty case, supra.

Prosser Ray for respondent.

(1) Sections 5 and 10 of the "railroad" ordinance of the City of Kansas were properly pleaded, and the motion to strike out portions of the petition setting them up was properly overruled. The ordinance was admissible in evidence. Crowley v. Railroad, 65 Iowa 658; Merz v. Railroad, 88 Mo. 672; Dunkman v. Railroad, 95 Mo. 232; Rafferty v. Railroad, 91 Mo. 33; Bowman v. Railroad, 85 Mo. 538. (2) The City of Kansas had power to make said ordinance and it was applicable within the city limits. Acts, 1875, pp. 204-7; Whitson v. City, 34 Ind. 396; Neier v. Railroad, 12 Mo.App. 25; Railroad v. City, 5 Hill, 209; 2 Dillon Mun. Corp., sec. 713; 2 Red. Ry. 577, 578. (3) The evidence as to O'Neal's general reputation for incompetency was admissible. Wood on M. & S., secs. 420, 421, p. 803; Davis v. Railroad, 20 Mich. 105; Gilman v. Railroad, 10 Allen, 233. (4) Previous acts of negligence of a similar class and character and in same employment were also admissible upon the questions of competency, and defendant's knowledge and negligence in retaining O'Neal. They were not offered or admitted as tending to prove the character of the act doing the injury. Neilon v. Railroad, 85 Mo. 590; Wood on M. &. S., p. 834; Wright v. Railroad, 25 N.Y. 562; Railroad v. Gilbert, 2 Am. and Eng. R. R. Cas. 233.

L. E. Wyne, also, for respondent.

(1) Defendant was guilty of negligence in employing and retaining in its employ O'Neal, knowing, or when by the exercise of reasonable diligence, it could have known, that he was incompetent. McDermott v. Railroad, 87 Mo. 285; Neilon v. Railroad, 85 Mo. 599; Maxwell v. Railroad, 85 Mo. 95; Lee v. Detroit Bridge Co., 62 Mo. 565; Harper v. Railroad, 47 Mo. 567. (2) And even though defendant did not know that O'Neal was incompetent, his negligence was the negligence of defendant, and it is liable. McDermott v. Railroad, supra; Moore v. Railroad, 85 Mo. 588; Dowling v. Allen, 74 Mo. 14; Hall v. Railroad, 74 Mo. 298; Brothers v. Carter, 52 Mo. 372.

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

OPINION

[98 Mo. 333] Black, J.

The plaintiff is the widow of Frank T. Grube. She brought this suit to recover damages for the death of her husband, who was injured in the defendant's switch yards at Kansas City on the twentieth of November, 1883, and from which injuries he died two or three days later. There was a verdict and judgment for plaintiff and the defendant appealed.

Page 737

There are some facts set out in the petition, disclosed by the evidence on both sides...

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