17 S.W. 748 (Mo. 1891), Sullivan v. Hannibal & St. J.R. Co.

Citation:17 S.W. 748, 107 Mo. 66
Opinion Judge:Sherwood, P. J.
Party Name:Sullivan v. The Hannibal & St. Joseph Railroad Company, Appellant
Attorney:L. H. Waters and Spencer, Burns & Mosman for appellant. C. O. Tichenor and Crittenden, Stiles & Gilkerson for respondent.
Case Date:November 09, 1891
Court:Supreme Court of Missouri

Page 748

17 S.W. 748 (Mo. 1891)

107 Mo. 66



The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri, First Division

November 9, 1891

Page 749

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

The following instructions were given for plaintiff: "1. If you believe from the evidence that, at the time and place in evidence, the plaintiff was in the employment of, and at work for, the defendant, under the orders, direction and control of a foreman who acted for the defendant in superintending the men employed and the work then being done in the removal of the roof of defendant's icehouse; that while so engaged in that work a defect was discovered in the tie-beam supporting the scaffolding in evidence; that plaintiff did not know of both the defect and the increased danger arising therefrom; that defendant's said foreman did know of said defect and its dangerous character; that with such knowledge said foreman assured the plaintiff and his fellow-workmen that the defect did not render the scaffolding dangerous or unsafe, or stated to, or in the hearing of, plaintiff that said scaffolding was all right, or words to that effect; and that the plaintiff, relying upon such statements of said foreman, and being directed by said foreman to do work which obliged him to go upon said scaffolding, stepped upon said scaffolding, which, on account of this defect, gave way and thereby precipitated the plaintiff to the ground; and that in consequence thereof he was injured, then the plaintiff was not guilty of such contributory negligence as will preclude a recovery in this case, and you should find for the plaintiff, unless you further find that said defect and its dangerous character were so obvious that a man of ordinary care and prudence would not have stepped upon said scaffolding.

"2. It was the duty of the defendant to use ordinary care to furnish for the use of the plaintiff and his fellow-workmen a scaffolding that was reasonably safe for the purposes for which it was intended and used; and if you find that defendant negligently failed to perform this duty, and furnished a scaffolding that was unsafe; that the defendant's foreman in charge of the men and the work knew of the unsafe condition of said scaffolding, and that, with such knowledge upon the part of its said foreman, the said foreman further negligently failed to either remedy the defect, or warn the plaintiff of the danger of going upon said scaffolding, and that the plaintiff, while in the observance of ordinary care and without negligence upon his part, and without knowledge of the unsafe condition of said scaffolding, went upon said scaffolding in the performance of the duty assigned him, and by reason of the defect therein was thrown to the ground and injured, then the plaintiff is entitled to recover.

"3. If the defendant's foreman knew of the defect in the scaffolding in proof, and the danger likely to ensue therefrom, it was his duty, if reasonably within his power, to remedy such defect, or warn the plaintiff of the danger, and thereby prevent the injury consequent therefrom.

"4. The fact, that the plaintiff had some knowledge or notice of a defect in the tie-beam supporting the scaffolding in evidence, may properly be considered by you in determining the question as to whether, by going upon the same while engaged in the work in which he was employed, the plaintiff was guilty of such negligence as contributed to his injury; yet this fact alone will not preclude a recovery upon his part, unless the danger from such defect was at the time so obvious or glaring as to deter a man of ordinary prudence from going where plaintiff went, and doing what he then did in the performance of the duty assigned him.

"5. The words, ordinary care, as used in these instructions, is that degree of care which a person of ordinary prudence would observe under like circumstances; and negligence, as used in these instructions, is the omission or failure of such a person to observe such care.

"6. The court instructs the jury that if you should find for the plaintiff you should assess his damages at such sum as you may believe him entitled to under the evidence in this case, but in an amount not exceeding $ 10,000. And, in arriving at the amount of damages, you should take into consideration the nature and extent of the injuries received by plaintiff, together with the pain and suffering, if any, caused thereby."

To which instructions and each of them, the defendant objected; which objections and each of them were by the court overruled, and said instructions given to the jury. To which action and ruling of the court in overruling said several objections and giving said instructions, the defendant then excepted and now excepts.

The following instructions were given for defendant: "1. The jury are instructed that they cannot infer or presume negligence on the part of the defendant, from the happening of the accident to...

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