20 S.W. 1060 (Mo. 1893), Gorham v. Kansas City & Southern Railway Company

Citation:20 S.W. 1060, 113 Mo. 408
Opinion Judge:Barclay, J.
Party Name:Gorham v. The Kansas City & Southern Railway Company, Appellant
Attorney:Johnson & Lucas for appellant. Fyke & Hamilton for respondent.
Judge Panel:Barclay, J. Black, C. J., Brace and Macfarlane, JJ., concur.
Case Date:January 23, 1893
Court:Supreme Court of Missouri
 
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Page 1060

20 S.W. 1060 (Mo. 1893)

113 Mo. 408

Gorham

v.

The Kansas City & Southern Railway Company, Appellant

Supreme Court of Missouri, First Division

January 23, 1893

Page 1061

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

The instructions in the cause in the trial court were the following:

Given for plaintiff:--"1. The court instructs the jury that it was the duty of the defendant to have kept its ties, roadbed and track in a reasonably safe condition for the passage of trains over the same; and to have furnished for use on said road cars and appliances which were reasonably safe for use thereon. And if you find from the evidence that at the time of the accident plaintiff was in the employ of the defendant as conductor of a freight train, and that defendant's roadbed and track were not in a reasonably safe condition for passage of trains over the same at the place of the accident, on account of rotten ties being therein, or on account of failure to properly ballast said roadbed, or on account of the inside rail of the curve near said accident being higher than the outside rail thereof, and that defendant knew, or by the exercise of ordinary care might have known, of the condition of said ties, roadbed and track before the accident; and if you further believe from the evidence that at the time of the accident defendant had provided for use in said train a caboose with a defective brake and had placed in said train a car so heavily loaded that it would not adjust itself to the track in passing over the same, and that by reason of the rotten condition of said ties, if they were rotten, or by the reason of defendant's failure to ballast said road, if it did so fail, or by reason of the rail on the inside of said curve being higher than the outside rail thereof, if said inside rail was higher, or by reason of the overloaded condition of said car, if it was so overloaded, or by reason of the defective brake on caboose, if it was so defective, or if by reason of all said things said train was wrecked, without the fault of plaintiff and he was thereby injured, you will find for plaintiff.

"2. If you find for plaintiff, you will, in assessing his damages, take into consideration his age and condition in life, the injury sustained by him, if any; the physical pain and mental anguish suffered and endured by him on account of said injury, if any; his loss of time, if any; such damages, if any, as you believe from the evidence he will sustain in the future as the direct effect of such injury; such sums as he has paid out for medical attention on account of said injury, if any; together with all the facts and circumstances in evidence in the cause; and assess the damages at such sum as from the evidence you may deem proper, not exceeding $ 15,000, the amount sued for."

Given for defendant:--"2. There is no evidence before the jury that the engineer in charge of the train at the time of the accident was incompetent, and that his incompetency was the proximate cause of the injury complained of by plaintiff, and that issue is withdrawn from your consideration."

"9. The mere fact that there may have been decayed ties in the roadbed at the point of the accident does not authorize you to find for the plaintiff. You must further believe that the decayed condition of the ties, if they were decayed, was the cause of the wreck, and that defendant knew, or by the exercise of ordinary care, might have known of the decayed condition of the ties, and that the wreck was caused by the fact that the ties were decayed; and, unless you so believe, you will find for the defendant on this issue. You are not authorized to find for the plaintiff from the fact alone that the ties were rotten at the point where the wreck occurred.

"10. Although you may believe from the evidence that the plaintiff was a conductor on the defendant's road, and, while in the employ of the defendant, his train was wrecked and injured thereby, and that the wreck was caused by the roadbed of defendant being in a defective condition, or by reason of the cross-ties thereon being decayed and rotten, or by reason of the brakes being defective, or by reason of one of the cars being overloaded, or by reason of the inside rail being higher than the outside one, all of these facts, if true, do not authorize you to find a verdict for the plaintiff. Before he can recover, you must believe that defendant knew, or by the exercise of ordinary diligence could have known that the track was in a defective condition, or that the cross-ties thereon were rotten, or that the brakes were defective, or that the cars were overloaded, or that the inside rail was higher than the outside one, and unless you are so satisfied, you will find for defendant.

"11. If the plaintiff knew that the car was overloaded, if such was the fact, or if the same was such that any ordinarily observant person would have known at the time of receiving the same, and the wreck was caused by the overloaded condition of the car, then plaintiff cannot recover.

"12. If the plaintiff knew of the defective condition of the brakes, if they were defective, or could have known if they were of such a character, as an ordinarily observant person would have known, and the condition of the brakes caused the wreck, plaintiff cannot recover.

"13. If the plaintiff knew of the defective condition of the roadbed, if it was defective, or if the defect therein, if there was any, was such as an ordinarily observant person would have known before entering the service of the defendant, then plaintiff cannot recover if such defect was the proximate cause of the injury.

"14. If the plaintiff knew that the cross-ties in defendant's roadbed were rotten, if they were rotten, or if the condition of the ties were such that an ordinarily observant person would have known before the accident, and he continued in the employment of said company after becoming possessed of such knowledge, then he cannot recover if the...

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