14 Mo.App. 160 (Mo.App. 1883)
MARTHA HUNT, Respondent,
MISSOURI RAILROAD COMPANY ET AL., Appellants.
Court of Appeals of Missouri, St. Louis.
June 12, 1883
APPEAL from the St. Louis Circuit Court, BOYLE, J.
DYER, LEE & ELLIS, for the appellants:
There is no presumption of negligence against a common carrier by reason of the fact that a passenger is injured on its conveyances.-- Yerkes v. Packet Co., 7 Mo.App. 267. When the facts as to negligence are clear and undisputed, the court should declare to the jury the inference to be drawn from the facts.-- Bell v. Railroad Co., 72 Mo. 41, 58.
JOHN WICKHAM, for appellant Higgins:
The court erred in refusing appellant Higgins a separate trial.--Rev. Stats., sect. 3603; Spaulding v. Suss, 4 Mo.App. 551; Colgrove v. Railroad Co., 6 Duer 430. The court erred in overruling appellant Higgins' objection to the introduction of any testimony against him under the petition which fails to state any concurrent negligence rendering both defendants liable.--2 Redf. on Rys. (5th ed.) 248, and note 10. The court erred in taking the question of contributory negligence, which is one of fact, from the jury by instructing them, on behalf of the respondent, that there was no evidence in the case of any contributory negligence on the part of George B. Hunt directly contributing to his death.-- Barnes v. Bellefontaine R. Co., 50 Mo. 140; Smith v. Union R. Co., 61 Mo. 591; Hulsenkamp v. Citizens' R. Co., 37 Mo. 553, 554; s. c. 34 Mo. 54; Beers v. Housatonic R. Co., 19 Conn. 57; Clark v. Eighth Av. R. Co., 36 N.Y. 135; Thompson on Car. Pass. 444 et seq. The court erred in refusing to instruct the jury that if they found there was any want of care on the part of the deceased, Geo. B. Hunt, or on the part of the car driver, which contributed directly to the injury which caused the death of said Hunt, they should find for appellant Higgins. It was error in the court to hold the appellant Higgins liable for the neglect of the car driver, which was the active cause of the injury.-- Thorogood v. Bryan, 8 C. B. 115; Brown v. N.Y. Central R. Co. 31 Barb. 385; s. c. 32 N.Y. 577, 602; Mooney v. Hudson River R. Co., 5 Robt. 553; Lake Shore R. Co. v. Miller et al., 25 Mich. 277; Lockhart v. Lichtenthaler, 46 Pa.St. 164.
W. C. JONES and A. R. TAYLOR, for the respondent: The granting of separate trials to defendants is within the discretion of the trial court.--Rev. Stats., sect. 3603. Higgins was guilty of negligence in suspending a rope across a street, where cars were passing, so low to the ground as not to let the cars pass. And the negligence of each defendant continued up to the moment of the fall of the derrick and the killing of the man. This made the defendants jointly and severally liable.--2 Thompson on Neg. 1088; Colgrove v. Railroad Co., 6 Deur 430; Thompson on Car. 284, 289; Bennett v. Railroad Co., 36 N.J. 225; Rider v. Freeman, 50 N.H. 420; Barrett v. Railroad Co., 45 N.Y. 628; The State v. Miseream, 64 N.Y. 138; Chapman v. Railroad Co., 19 N.Y. 341.
LEWIS, P. J.
The plaintiff sues under sections 2121 and 2122 of the Revised Statutes, for damages sustained in the killing of her husband, while he was riding on a street car of the defendant corporation. There was a jury verdict for $5,000 in favor of the plaintiff and judgment accordingly against both the defendants.
The testimony tended to show that defendant Higgins was a contractor for reconstructing the " Dorris Row" of buildings, on the north side of Olive Street in the city of St. La. He used in his work a movable derrick, about thirty-eight feet in height, which was placed on the sidewalk and leaned toward the building, from five to seven feet from the perpendicular. It was secured in position by two guy ropes, about eighty-seven feet apart at the lower ends which extended from the top of the derrick to the other side of the street, and were there tied to upright posts, at the height of six or eight feet from the ground. These guys were, in fact, one continuous rope, passing through pulleys at the top of the derrick. There was also a rope which held the top of the derrick towards the building. This was tied to an upright piece of scantling, within an upper story, which was nailed at the top and bottom to the joist and the floor, and was otherwise reinforced by secured bits of scantling. Some ten or fifteen minutes before the accident hereinafter mentioned, the derrick was moved about two feet westward, and the west guy rope which, until then, had been fastened at a point forty feet from the other, was moved and tied to a post forty-seven feet further west. There was a good deal of testimony tending to show that the workmen, in making these adjustments, used much care in providing against a possible contact of the ropes with passing street cars. The plaintiff's husband, a passenger, was standing upon the rear platform of car No. 93 of the defendant railroad company, going...