24 S.W. 782 (Mo. 1893), Williams v. The St. Louis & San Francisco Railway Company

Citation:24 S.W. 782, 119 Mo. 316
Opinion Judge:Macfarlane, J.
Party Name:Williams, Appellant, v. The St. Louis & San Francisco Railway Company
Attorney:Mellette & Frink and O'Day & Travers for appellant. L. F. Parker and E. D. Kenna for respondent.
Judge Panel:Macfarlane, J. Barclay, J., is absent.
Case Date:December 23, 1893
Court:Supreme Court of Missouri

Page 782

24 S.W. 782 (Mo. 1893)

119 Mo. 316

Williams, Appellant,

v.

The St. Louis & San Francisco Railway Company

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from Greene Circuit Court. -- Hon. C. B. McAfee Special Judge.

Affirmed.

Mellette & Frink and O'Day & Travers for appellant.

(1) The evidence presents a case of manifest negligence on the part of the defendant. It was the duty of the defendant to keep its track in such condition of repair as to make it safe for its employees while engaged thereon in the performance of their duties, and if it failed so to do, it is liable. Snow v. Railroad, 8 Allen, 441; Cayzer v. Taylor, 10 Gray, 274; Lewis v. Railroad, 59 Mo. 495; Huhn v. Railroad, 92 Mo. 440; Gibson v. Railroad, 46 Mo. 163; Conroy v. Iron Works, 62 Mo. 35. (2) It was the duty of the section foreman to keep the track clear of obstructions. His negligence was the negligence of the company. Harper v. Railroad, 47 Mo. 567; Brothers v. Cartter, 52 Mo. 372; Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 71 Mo. 66. (3) It was not the duty of plaintiff to find out whether there were obstructions on the track. This was the duty of the company. Porter v. Railroad, 60 Mo. 160; Dale v. Railroad, 63 Mo. 455; Railroad v. Ingram, 77 Ill. 309; Railroad v. Markey, 19 S.W. 392; Hannah v. Railroad, 154 Mass. 529. (4) And if defendant could have known by careful and thorough examination of the dangerous condition of the track and of the existence of the instrument on which plaintiff slipped and fell, it was guilty of negligence, and is liable to plaintiff for the injury he sustained. Ingalls v. Mark Bills, 9 Met. 1; Simmons v. Steam Co,, 97 Mass. 361; Ladd v. Railroad, 119 Mass. 412; Paterson v. Wallace, 1 Macq. 748. (5) The thing on which plaintiff slipped and fell was concealed in the grass and he was not bound to know of its existence. If his means of finding out it was there were equal to those of the company, this would not relieve the defendant from responsibility. Porter v. Railroad, 71 Mo. 66; Harr v. Railroad, 23 N.Y.S. R. 187. (6) Even though the plaintiff knew of the existence of the grass and the water on the track, his attempt to couple the cars when and where he did, did not constitute contributory negligence on his part. Railroad v. Russell, 91 Ill. 298; Porter v. Railroad, 71 Mo. 66; Snow v. Railroad, 8 Allen, 441; Baker v. Railroad, 95 Penn. St. 211; Plank v. Railroad, 60 N.Y. 607. (7) The court should have sent the case to the jury. It was for them to determine the question of contributory negligence. Mauerman v. Seimerts, 71 Mo. 101; Stoddard v. Railroad, 65 Mo. 514; Huhn v. Railroad, 92 Mo. 440; Brown v. Railroad, 99 Mo. 310; Krim v. R'y & Transit Co., 90 Mo. 314; Drain v. Railroad, 86 Mo. 574. (8) If reasonable minds may differ as to the conclusions to be drawn from a given state of facts, it is for the jury to say whether or not there was contributory negligence. Nagel v. Railroad, 75 Mo. 653; Norton v. Ittner, 56 Mo. 351; Barry v. Railroad, 98 Mo. 62; Petty v. Railroad, 88 Mo. 306; Boland v. City of Kansas, 32 Mo.App. 8; Ridings v. Railroad, 33 Mo.App. 527; Kinney v. City of Springfield, 35 Mo.App. 97. Contributory negligence will only be declared as a matter of law when no other conclusion can be fairly and reasonably drawn from the facts in evidence. Wilkens v. Railroad, 101 Mo. 93. (9) If there is evidence, however slight, to sustain plaintiff's claim the case must go to the jury. Charles v. Patch, 87 Mo. 450; Twohey v. Fruin, 96 Mo. 104; Commonwealth v. Railroad, 10 Allen, 189; 1 and 2, Pattison's Digest, secs. 77, 78.

L. F. Parker and E. D. Kenna for respondent.

(1) There is no negligence shown in this case. Finnell v. Railroad, 129 N.Y. 669; Railroad v. Hankey, 93 Ill. 580; Railroad v....

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