19 S.W. 239 (Mo. 1892), Henry v. The Wabash Western Railway Company

• Citation: 19 S.W. 239, 109 Mo. 488
• Opinion Judge: Macfarlane, J.
• Party Name: Henry v. The Wabash Western Railway Company, Appellant
• Attorney: F. W. Lehman and G. S. Grover for appellant. John A. Talty for respondent.
• Case Date: March 28, 1892
• Court: Supreme Court of Missouri

Page 239

19 S.W. 239 (Mo. 1892)

109 Mo. 488

Henry

v.

The Wabash Western Railway Company, Appellant

Supreme Court of Missouri, Second Division

March 28, 1892

October, 1891

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Affirmed.

F. W. Lehman and G. S. Grover for appellant.

(1) It is clear that the preponderance of the evidence in favor of the defendant in this case is so great as to imply partiality, prejudice or misconduct on the part of the jury. Spohn v. Railroad, 87 Mo. 74. (2) Under the evidence in this case the plaintiff ought not to recover, because the accident was caused by one of the perils of the service assumed by him when he entered the defendant's employ. Hewitt v. Railroad, 67 Mich. 61; Schaub v. Railroad, 106 Mo. 74. (3) The court gave improper instructions at the plaintiff's request, and refused proper instructions asked by defendant. Authorities cited, supra; Sawyer v. Railroad, 37 Mo. 240.

John A. Talty for respondent.

(1) The verdict is not against the weight of the evidence, and should not be disturbed on that ground. Doering v. Saum, 56 Mo. 479; St. Louis, etc., v. McCann, 68 Mo. 195; Charles v. Patch, 87 Mo. 450; Twohey v. Fruin, 96 Mo. 104. Any evidence, however slight it may be, and whether direct or inferential, must go to the jury. The same is held in the following cases also: Clotworthy v. Railroad, 80 Mo. 220; Kelley v. Railroad, 70 Mo. 604; Cook v. Railroad, 63 Mo. 397; Tutt v. Cloney, 62 Mo. 116; St. Vrain v. Levee Co., 56 Mo. 590. (2) It was defendant's and its train repairer's duty to see that the brake on the car was in good condition. And, again, defendant's section foreman was not a fellow-servant of plaintiff. Sullivan v. Railroad, 97 Mo. 113; Barry v. Railroad, 98 Mo. 62.

OPINION

[109 Mo. 490] Macfarlane, J.

This is an action for damages for personal injuries received by plaintiff while engaged in the discharge of his duties as a locomotive fireman on one of the defendant's engines, on the line of its road near Hull's Point, Missouri, by reason of a collision of the engine with a freight car standing upon the track.

The petition charged that the engine, on which plaintiff was firing, ran into a freight car, by reason of which the engine was thrown from the track and plaintiff injured. The negligence charged was that the brakes on said freight car were defective and insufficient to hold the car in its place, and such defective condition was known to defendant, or by reasonable care might have been known by it. That said car, in such defective condition, was placed on the sidetrack at Hull's Point, and left thereon without being properly secured, and on the night of December 31, 1887, said car, by reason of not being secured, was moved by its [109 Mo. 491] own...