21 Mo.App. 433 (Mo.App. 1886), Dedrick v. Missouri Pac. Ry. Co.
|Citation:||21 Mo.App. 433|
|Opinion Judge:||ELLISON, J.|
|Party Name:||PERRY DEDRICK BY NEXT FRIEND, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.|
|Attorney:||THOMAS G. PORTIS and WILLIAM S. SHIRK, with THOS. J. PORTIS, for the appellant. DRAFFEN & WILLIAMS, for the respondent.|
|Case Date:||April 05, 1886|
|Court:||Court of Appeals of Missouri|
APPEAL from Cooper Circuit Court, HON. E. L. EDWARDS, Judge.
Statement of case by the court.
Plaintiff being a minor sues by his next friend. He complains that being in the employ of defendant as a section hand and while in the performance of his duty with due care, he was injured while operating a hand car, on account of the breaking of the lever or " pump handle." He charges that the handle was defective and decayed and wholly insufficient for the purposes for which it was intended to be used. That the defendant knew of the defect and insufficiency, or, by reasonable precaution and care, might have known of it, and that he was wholly ignorant of such defect. The answer affirmed the soundness, safety and sufficiency of the handle.
On trial plaintiff recovered a judgment for $1,400.00 and defendant appeals.
I. The theory of the petition is that defendant was negligent in failing to provide, for the use of its employes, a hand car reasonably safe and sufficient for the purpose, there being a defect in the handle or lever of the car so provided by defendant. There is no evidence that defendant knew, or had any opportunity to know, unless it can be held that the knowledge of Salin and the foreman, and their negligence, can be imputed to the defendant. There was no negligence on the part of the defendant, or of any agent empowered to act for it, in providing the handle which caused the injury, and there was no case to submit to the jury. 2 Rorer on Railroads 1216; 3 Wood's Ry. Law, sect. 370; Siela v. Railroad, 82 Mo. 435.
II. The section foreman Doyle, and the other laborer, Salin, were both fellow servants of the plaintiff, and he cannot recover for any acts of negligence on their part. Blessing v. Railroad, 77 Mo. 410; McGowan v. Railroad, 61 Mo. 528.
III. Under the evidence in the case he must be held to have had knowledge of defect, if there was any, and to have assumed the risk, and for this reason the case should have been taken from the jury. Keegan v. Kavanaugh, 62 Mo. 232; Hulett v. Railroad, 67 Mo. 239; Porter v. Railroad, 71 Mo. 78; Nolan v. Shickle,...
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