17 S.W. 580 (Mo. 1891), Bohn v. Chicago, R.I. & P. Ry. Co.

• Citation: 17 S.W. 580, 106 Mo. 429
• Opinion Judge: Black, J.
• Party Name: Bohn v. The Chicago, Rock Island & Pacific Railway Company, Appellant
• Attorney: M. A. Lowe, W. F. Evans and T. E. Turney for appellant. Wm. Henry and Joel A. Trice for respondent.
• Case Date: November 09, 1891
• Court: Supreme Court of Missouri

Page 580

17 S.W. 580 (Mo. 1891)

106 Mo. 429

Bohn

v.

The Chicago, Rock Island & Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

November 9, 1891

Appeal from Clinton Circuit Court. -- Hon. James M. Sandusky, Judge.

Reversed and remanded.

M. A. Lowe, W. F. Evans and T. E. Turney for appellant.

(1) Instruction, numbered 1, asked by defendant should have been given. There is no evidence tending to show that defendant was negligent in furnishing the piece of timber that broke, or that it was defective, improper or insufficient. The evidence shows the contrary. Shultz v. Railroad, 36 Mo. 1; Smith v. Railroad, 37 Mo. 287; McDermott v. Railroad, 87 Mo. 285; Condon v. Railroad, 78 Mo. 572; Bowen v. Railroad, 95 Mo. 268; Wood on Master & Servant, secs. 382, 419; Shearman & Redf. on Neg., sec. 99; Railroad v. Troesch, 68 Ill. 545; DeGraff v. Railroad, 76 N.Y. 126; Mining Co. v. Kitts, 42 Mich. 34; Railroad v. Wagner, 33 Kan. 660. The defense of contributory negligence set up in the answer is proven by the circumstances and testimony of plaintiff's witnesses. Beach on Contributory Negligence [1 Ed.] sec. 7, and cases cited. (2) The court erred in giving the second instruction asked by plaintiff. If the piece of timber was defective it was obviously so. There was no evidence upon which to base this instruction. Lester v. Railroad, 60 Mo. 265; Whitsell v. Railroad, 67 Ia. 150; Benton v. Railroad, 55 Iowa 496. (3) The motion for new trial should have been sustained. Brown v. Railroad, 101 Mo. 484

Wm. Henry and Joel A. Trice for respondent.

(1) Since the appellant did not stand on his demurrer at the close of plaintiff's testimony, the whole of the evidence on both sides must be considered in passing upon its sufficiency to sustain the verdict. Bowen v. Railroad, 95 Mo. 275. (2) Samuel Crawford was beyond any dispute the vice principal of defendant (15 S.W. 554; Bowen v. Railroad, 95 Mo. 268; Moore v. Railroad, 85 Mo. 588; Hall v. Railroad, 74 Mo. 298; Smith v. Railroad, 92 Mo. 359); and since he was present and actually superintending and controlling the work, it was his duty as representative of defendant to use reasonable and ordinary care and foresight to see that the appliances and means of leverage used under his immediate direction were sufficient and safe, as they were then being used. Bowen v. Railroad, 95 Mo. 278; Covey v. Railroad,...