15 S.W. 771 (Mo. 1891), Young v. Shickle, Harrison & Howard Iron Co.

Citation:15 S.W. 771, 103 Mo. 324
Opinion Judge:Black, J.
Party Name:Young, Appellant, v. Shickle, Harrison & Howard Iron Company
Attorney:M. F. Taylor and F. M. Estes for appellant. T. A. Post for respondent.
Judge Panel:Black, J. Sherwood, C. J., dissents.
Case Date:March 09, 1891
Court:Supreme Court of Missouri
 
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Page 771

15 S.W. 771 (Mo. 1891)

103 Mo. 324

Young, Appellant,

v.

Shickle, Harrison & Howard Iron Company

Supreme Court of Missouri, First Division

March 9, 1891

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay, Judge.

Reversed and remanded.

M. F. Taylor and F. M. Estes for appellant.

(1) The erecting, providing and using of the platt form and signal stations by defendant in the manner described in the petition was negligence and constituted a breach of its duty as the employer of plaintiff. Bazell v. Mfg. Co., 48 Me. 113; Porter v. Railroad, 71 Mo. 66; Parsons v. Railroad, 94 Mo. 266; Reber v. Tower, 11 Mo.App. 199; Shearman & Redf. on Negligence, secs. 194, 197. (2) Defendant's negligence and breach of duty as plaintiff's employer was the direct and proximate cause of plaintiff's injury. (3) Upon the facts disclosed in the petition, plaintiff was not guilty of contributory negligence and did not voluntarily assume the risk of injury. (4) The facts essential to plaintiff's recovery were sufficiently pleaded. Crane v. Railroad, 87 Mo. 388; Johnson v. Railroad, 96 Mo. 340; Porter v. Railroad, 60 Mo. 160; Gibson v. Railroad, 52 Mo. 372; Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 673.

T. A. Post for respondent.

(1) The petition did not state facts authorizing a recovery. Cummings v. Collins, 61 Mo. 523; Nolan v. Shickle, 69 Mo. 340; Wright v. Railroad, 25 N.Y. 566; Williams v. Clough, 3 Hurlst. & Norm. 256. "If the danger or defect is known to the employe, or might have been known to him by the use of ordinary care, and there is no inducement to remain, by promises to remove, to secure or to remedy the same, it would seem but reasonable that he assumes the risk and should not recover." Greenleaf v. Railroad, 29 Iowa 46; Hayden v. Mfg. Co., 29 Conn. 560; Lansing v. Railroad, 49 N.Y. 534; Fifield v. Railroad, 42 N.H. 240; Moss v. Johnson, 26 Ill. 642; 46 Ill. 99; Burrell v. Mfg. Co., 48 Me. 121; McDermott v. Railroad, 30 Mo. 117; Priestly v. Fowler, 3 Mees. & W. 5-7; Dynem v. Leach, 26 Law Jour. Exch. (N. S.) 221. The petition on its face placed the casualty in the class of accidents not attributable to any particular cause. Nolan v. Shickle, 3 Mo.App. 305; Shultz v. Railroad, 36 Mo. 32; Boyd v. Graham, 5 Mo.App. 403. (2) The petition shows that the accident was caused by a fellow servant. Marshall v. Shrickler, 63 Mo. 311; Moore...

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