16 S.W. 943 (Mo. 1891), Gutridge v. The Missouri Pac. Ry. Co.

Citation:16 S.W. 943, 105 Mo. 520
Opinion Judge:Thomas, J.
Party Name:Gutridge v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest and W. S. Shirk for appellant. Fike & Calvert for respondent.
Case Date:June 30, 1891
Court:Supreme Court of Missouri
 
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Page 943

16 S.W. 943 (Mo. 1891)

105 Mo. 520

Gutridge

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

June 30, 1891

Appeal from Henry Circuit Court. -- Hon. D. A. DeArmond, Judge.

Affirmed.

H. S. Priest and W. S. Shirk for appellant.

(1) Defendant's demurrer to the plaimtiff's evidence, and its instruction in the nature of a demurrer to the whole case, should have been given. First. The doctrine that an employe cannot recover for an injury occasioned by a latent defect, unless the defendant knew it, or could have discovered it by the exercise of reasonable care, is so firmly and familiarly established in this state that a citation of authorities is scarcely justifiable. But see Corey v. Railroad, 86 Mo. 635; Elliott v. Railroad, 67 Mo. 272; Murphy v. Railroad, 71 Mo. 202. Second. The mere fact that the handhold pulled loose does not as between master and servant raise a presumption of negligence on the part of the master, nor does it, without more, justify a verdict against the master. Wood on M. & S., sec. 419; Railroad v. Higgins, 36 Mo. 418; Shultz v. Railroad, 36 Mo. 13; DeGruff v. Railroad, 76 N.Y. 125; Railroad v. Milliken, 8 Kan. 647; Railroad v. Froesch, 68 Ill. 545; Duffy v. Upton, 113 Mass. 544. Third. This case is entirely unlike the case of Condon v. Railroad, 78 Mo. 567. (2) Gutridge was guilty of such carelessness and recklessness in attempting to get down from the car, and which was the direct cause of his death, as precludes a recovery in this case. And this for two reasons: First. He "swung" himself off the roof of the car, thus subjecting the handhold to an unusual and unnecessary strain. Second. In voluntarily attempting to descend from the car, while it was in motion, upon a ladder on the end of the car. There is no evidence that the ladder and handhold were intended for use while the car was in motion. To the contrary, the evidence shows that it was entirely optional with him whether he could descend whilst the car was moving, or wait until it stopped and then get down. Turner v. Railroad, 74 Mo. 602; Cunningham v. Railroad, 12 Am. & Eng. R. R. Cas. 217; Railroad v. Elliott, 98 Ill. 481. (3) It was error to permit the plaintiff to introduce evidence as to the appearance of the handhold, and of the screws, and of the wood in which they had been imbedded, after it was pulled loose from the car. The question was, could the defendant have discovered, by a reasonable inspection of the handhold, before it was pulled off, that it was unsafe, etc., and it was not bound by appearances after it was pulled off, and such evidence tended to prejudice the jury. Elliott v. Railroad, 67 Mo. 272; Rorer on Railroads, pp. 1200 and 1201; Salterle v. Railroad, 3 Hun, 348; Payne v. Railroad, 9 Hun, 526; Dougan v. Trans. Co., 56 N.Y. 1; Dall v. Railroad, 73 N.Y. 468; Stoher v. Railroad, 91 Mo. 504. (4) It was error to permit the witness, Mead, and other witnesses, to testify that it was customary and usual for brakemen to get off of a car in the manner in which Gutridge did. The servant has no right to establish for himself a dangerous rule of conduct which will bind the master. The evidence of Mead was very prejudicial to defendant. Thus Mead was permitted to usurp the function of the jury, and substitute his judgment for theirs, and thus decide the question for them. None of the cases permit this. Freight Co. v. Stanard, 44 Mo. 71; Whitsell v. Railroad, 22 Am. & Eng. R. R. Cases, 336; Jeffrey v. Railroad, 5 Am. & Eng. R. R. Cases, 568. Mead was a conductor and in defendant's employ, and his evidence on this point must have controlled the jury. (5) The accident occurred in full daylight, and Gutridge's opportunity to observe any defect in the handhold was at least equal to that of any car inspector or other servant of defendant. If so, he must be deemed to have assumed the risk. Dale v. Railroad, 53 Mo. 455; Smith v. Railroad, 69 Mo. 32; Cummings v. Collins, 61 Mo. 520.

Fike & Calvert for respondent.

(1) It was defendant's duty to...

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