24 Mo.App. 235 (Mo.App. 1887), Conway v. The Hannibal & St. Joseph R. Co.
|Citation:||24 Mo.App. 235|
|Opinion Judge:||HALL, J.|
|Party Name:||PATRICK CONWAY, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.|
|Attorney:||STRONG & MOSMAN, for the appellant. No brief for the respondent.|
|Case Date:||January 10, 1887|
|Court:||Court of Appeals of Missouri|
APPEAL from Macon Circuit Court, HON. ANDREW ELLISON, Judge.
Reversed and remanded.
Statement of case by the court.
This was an action by plaintiff, an employe of defendant, to recover damages for an injury sustained by him while engaged in the defendant's service.
This action grew out of the same accident, on account of which the case of Muirhead v. Railroad (19 Mo.App. 634), was instituted. This action was begun in the Macon circuit court, while the case of Muirhead was instituted in the Livingston circuit court.
The accident happened to a wrecking train, which was en route to the scene of a wreck of one of defendant's trains. The plaintiff was on the wrecking train and was injured.
The petition, in this case, alleged that the wrecking train " was by defendant improperly, negligently and ??skillfully made up. That defendant knowingly placed in said train a wrecking or derrick car, which was old, rotten * * *." The petition then alleged: " That on said wrecking car was a large derrick, or upright pillar, with large swinging lever boom projecting far out over the sides of the car, when swinging to the side, and liable to come in contact with the upright sides of the bridges along the route on which said car had to pass. That defendant placed said derrick car in said train with said boom aforesaid, pointing forward in the direction of the running train, and without any adequate or safe fastenings to fix and hold it in place."
During the trial the court permitted the defendant to introduce in evidence the opinion of a witness to the effect, that it would have been safer to have placed the derrick car in the train with the boom pointing to the rear than to the front.
For the plaintiff the court gave, among others, the following instruction:
" 2. If the jury believe from the evidence that the derrick car was being repaired at Brookfield by the defendant, then it was the duty of defendant, before it departed from Brookfield with the same, to see that said derrick car was reasonably safe, and in reasonable repair, and defendant is liable to plaintiff for any neglect of its duty in the repair of said car, and the placing the same in said wrecking train, in an unsafe and dangerous position, and coupling the...
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