22 S.W. 903 (Mo. 1893), O'Donnell v. Patton

Citation:22 S.W. 903, 117 Mo. 13
Opinion Judge:Macfarlane, J.
Party Name:O'Donnell, by Guardian, Appellant, v. Patton
Attorney:D. H. Eby for appellant. Harrison & Mahan for respondent.
Case Date:June 19, 1893
Court:Supreme Court of Missouri
 
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Page 903

22 S.W. 903 (Mo. 1893)

117 Mo. 13

O'Donnell, by Guardian, Appellant,

v.

Patton

Supreme Court of Missouri, First Division

June 19, 1893

Appeal from Hannibal Court of Common Pleas. -- Hon. Thomas H. Bacon, Judge.

Affirmed.

D. H. Eby for appellant.

(1) Instruction number 3 of defendant's series assumes that plaintiff did not exercise ordinary care, and is therefore erroneous. (2) Defendant's instruction number 5, is erroneous in authorizing a verdict against plaintiff, if the plaintiff merely knew of the condition of the pile of shavings, without reference to the question whether plaintiff subsequently exercised due care or not; and a similar vice characterizes defendant's instructions numbers 6 and 7 and 8, which is not removed by the fact that plaintiff's instructions were correct. The instructions as a whole were confusing and inconsistent, and permitted a verdict for defendant on incorrect theories of law and operated to the prejudice of plaintiff in the presentation of his case before the jury.

Harrison & Mahan for respondent.

(1) The case was submitted to the jury on correct principles of law. There is no error in the instructions. Eisenberg v. Railroad, 33 Mo.App. 90; Carleton v. Iron Co., 99 Mass. 217. Appellant only complains of the instructions asked by and given for respondent. These instructions are based upon the evidence and fairly present the law. Mauerman v. Siemerts, 71 Mo. 101; Redell v. Berkey, 43 N.W. 308; Reardon, v. Thompson, 21 N.E. 369. (2) George W. O'Donnell was guilty of contributory negligence; the jury so found, and the judgment should be affirmed. Milburn v. Railroad, 86 Mo. 104; Powell v. Railroad, 76 Mo. 80; Dlauhi v. Railroad, 105 Mo. 655; Norton v. Ittner, 56 Mo. 352; Nagel v. Railroad, 75 Mo. 653; Wyath v. Railroad, 55 Mo. 485; Murray v. Railroad, 101 Mo. 236.

OPINION

[117 Mo. 15] Macfarlane, J.

-- The suit is for damages for personal injuries sustained by plaintiff by reason of a pile of saw-dust and shavings falling upon him.

The petition charged that defendant owned and operated in the city of Hannibal a steam saw and planing mill, the saw-dust and shavings of which were negligently allowed to accumulate on his premises and under his care, control and management about "forty feet high, with a precipitous face and partially undermined and top-heavy from the accumulation of ice in the upper portion of said pile, and thereby dangerous to persons being near it; that on said eighth day of February, 1889, and for a long time prior thereto, defendant had offered said shavings and saw-dust constituting said pile for sale, and sold portions of the same by the wagon-load and otherwise to various persons, and had solicited any and all persons desiring to purchase shavings or saw-dust to get the same at and from said pile, which had frequently been done by numerous persons prior to, and up to, and including said eighth day of February, 1889, of all which the defendant had due notice; that on the day last aforesaid the said plaintiff drove up to said mill in a one-horse wagon and applied to William H. Hibbert, who was the agent, servant and employee of defendant, in charge and control [117 Mo. 16] of said...

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