27 S.W. 516 (Mo. 1894), Nicholds v. Crystal Plate Glass Company

• Citation: 27 S.W. 516, 126 Mo. 55
• Opinion Judge: Black
• Party Name: Nicholds v. Crystal Plate Glass Company, Appellant
• Attorney: E. T. & C. B. Allen for appellant. C. P. & J. D. Johnson for respondent.
• Case Date: December 22, 1894
• Court: Supreme Court of Missouri

Page 516

27 S.W. 516 (Mo. 1894)

126 Mo. 55

Nicholds

v.

Crystal Plate Glass Company, Appellant

Supreme Court of Missouri, First Division

December 22, 1894

Appeal from Iron Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

""E. T. & C. B. Allen for appellant.

(1) Omission to have inspected the chain which broke was not negligence on the part of the defendant under the circumstances of this case. ""Cregan v. Marston, 126 N.Y. 568; ""Griffiths v. Railroad, 28 N.Y.S. 75; ""Davis v. Company, 76 Hun, 289; Beven's Principles of the Law of Negligence, 322; ""French v. Aulis, 25 N.Y.S. 188; ""Atlas Engine Works v. Randall, 100 Ind. 293; ""Richards v. Rough, 53 Mich. 212; ""Morgan v. Iron Co., 133 N.Y. 666; ""Gibson v. Railroad, 46 Mo. 169; ""Corey v. Railroad, 86 Mo. 643; ""Reber v. Tower, 11 Mo.App. 204; Bailey's Master's Liability for Injuries to Servants, 169. (2) But if omission to have inspected the chain which broke was negligence on the part of defendant, plaintiff can not recover, because knowing of such omission he made use of the chain. ""Railroad v. Minnick, 61 F. 635; ""Railroad v. Drake, 35 P. 825, and cases cited; ""Lord v. Railroad, 12 Col. 394; ""Leary v. Railroad, 139 Mass. 580; ""Sullivan v. India Mfg. Co., 113 Mass. 398; ""Ladd v. Railroad, 119 Mass. 350; ""Railroad v. Watson, 114 Ind. 20; ""Smith v. Sellars, 40 La. Ann. 527; ""Bengston v. Railroad, 47 Minn. 486; ""Hughes v. Railroad, 27 Minn. 137; ""Sherman v. Railroad, 34 Minn. 259; ""Perigo v. Railroad, 52 Iowa 276; ""Wells v. Railroad, 56 Iowa 524; ""McKee v. Railroad, 13 L. R. A. (Iowa) 817; ""Railroad v. Barber, 5 Ohio St. 564. (3) The court below erred in refusing defendant's instruction 12 and in presenting as part of its own instruction the contrary proposition. ""Roddy v. Railroad, 104 Mo. 243; ""Price v. Railroad, 77 Mo. 510; ""Thomas v. Railroad, 109 Mo. 198; ""Boettger v. Iron Co., 27 S.W. 466; ""Hogan v. Field, 51 N.Y.S. 72; ""Stroble v. Railroad, 70 Iowa 555; ""Week v. Mill Co., 3 Wash. St. 629; ""Schulz v. Johnson, 35 P. 130. (4) The court below erred in refusing defendant's instructions numbers 4, 5, 6, 7, 8, and 10. ""English v. Railroad, 24 F. 208; ""Railroad v. Burnes, 36 N.E. 1092; ""Murphy v. Greeley, 146 Mass. 196; ""Railroad v. McCarthey, 64 Tex. 632; ""Hulet v. Railroad, 67 Mo. 239. The neglect of defendant (if any there was), was not the proximate cause of the injury complained of. ""Henry v. Railroad, 76 Mo. 288. (5) The chain link produced in evidence could not have been a part of the chain which broke. Haswell's Mechanics' and Engineers' Pocket Book [56 Ed. 1891], 135, 231, 784; Trautwein's Civil Engineer's Pocket Book [14 Ed. 1891], 414; ""Hunter v. Railroad, 6 L. R. A. 246. (6) The decision rendered in this case by division number one should not be followed. Cases cited under point 3; cases cited under point 4; ""Davis v. Elevating Co., 76 Hun, 298; ""McKinnon v. Norcross, 3 L. R. A. 320; ""Cregan v. Marston, 126 N.Y. 568; ""Covey v. Railroad, 86 Mo. 643. It was substantially overruled by the later case of ""Boettger v. Iron Co., 27 S.W. 466. It is not in accord with the following cases: ""Henry v. Railroad, 109 Mo. 493; ""Steffen v. Meyer, 96 Mo. 423; ""Maher v. Railroad, 64 Mo. 267; ""Zimmerman v. Railroad, 71 Mo. 476; ""Maloy v. Railroad, 84 Mo. 270; ""Purl v. Railroad, 72 Mo. 168; ""Yarnall v. Railroad, 75 Mo. 575; ""Powell v. Railroad, 76 Mo. 80; ""Hudson v. Railroad, 101 Mo. 13; ""Corcoran v. Railroad, 105 Mo. 399; ""Weber v. Railroad, 100 Mo. 194; ""Haynes v. Railroad, 108 Mo. 123.

""C. P. & J. D. Johnson for respondent.

The decision of the case by the majority of division number one of this court on all points raised before it, except as to the measure of damages, was correct. The verdict is not, under the facts and circumstances of the case, excessive. ""Porter v. Railroad, 71 Mo. 66; ""Waldheier v. Railroad, 87 Mo. 37; ""Dougherty v. Railroad, 97 Mo. 666. And the court will consider the previous verdict of $ 15,000, in determining whether or not the verdict is excessive. ""Stephens v. Railroad, 96 Mo. 215; ""Whalen v. Railroad, 60 Mo. 329; ""Klutts v. Railroad, 75 Mo. 649; ""Fry v. Railroad, 73 Mo. 129; ""Furnish v. Railroad, 102 Mo. 455. There being no error of law, or misconduct of the jury in the record, the defendant is not entitled to a second new trial. R. S. 1889, sec. 2241; ""Oldham v. Henderson, 4 Mo. 295; ""Hill v. Deaver, 7 Mo. 58; ""Boyce v. Smith, 16 Mo. 321; ""Waldheier v. Railroad, 71 Mo. 514; ""State ex rel. v. Adams, 76 Mo. 605; ""Gregory v. Chambers, 78 Mo. 294; ""Pritchard v. Hewitt, 91 Mo. 547; ""Smith v. Railroad, 92 Mo. 359; ""Furnish v. Railroad, 102 Mo. 438; ""Gurley v. Railroad, 104 Mo. 233; ""Boggess v. Railroad, 118 Mo. 328; ""Burdict v. Railroad, 123 Mo. 221.

Black, P. J. Barclay, J., dissents (Division One). Barclay, Gantt and Sherwood, JJ., dissent as to the fourth paragraph (In Banc).

OPINION

Black

Page 517

[126 Mo. 59] In Banc.

DIVISION ONE.

Black, P. J. -- This is a personal damage suit in which the plaintiff obtained a verdict and judgment, from which the defendant appealed. The principal alleged errors are: First. There is no evidence of negligence on the part of the defendant. Second. The plaintiff was guilty of contributory...