27 S.W. 533 (Mo. 1894), Ryan v. McCully

Citation:27 S.W. 533, 123 Mo. 636
Opinion Judge:Barclay, J.
Party Name:Ryan, Appellant, v. McCully
Attorney:John J. O'Connor for appellant. Pollard & Werner and Wentworth Terry for respondent.
Judge Panel:Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.
Case Date:July 09, 1894
Court:Supreme Court of Missouri
 
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Page 533

27 S.W. 533 (Mo. 1894)

123 Mo. 636

Ryan, Appellant,

v.

McCully

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Affirmed.

John J. O'Connor for appellant.

(1) The court erred it taking the case from the jury. There was some evidence that Ryan's fall was caused by defendant's negligence, and where there is any evidence, be it ever so slight, in support of a material issue, it is the duty of the jury alone to determine the weight of such evidence. Kelly v. Railroad, 70 Mo. 608; Barry v. Railroad, 98 Mo. 62; Clay v. Railroad, 24 Mo.App. 39. (2) The inference that Ryan was "tilted or thrown off" the beam on which he stood through the sudden dropping of the beam from the derrick, is clearly raised by the testimony of Moore and Van Hook, and this negligent act (the sudden dropping), as well as its result on Ryan, like any ultimate fact in issue, may be established as well by reasonable inferences from other facts as by more direct proof. Blanton v. Dold, 109 Mo. 75; Barnowski v. Halson, 89 Mich. 523; Rice v. McFarland, 41 Mo.App. 498; Rine v. Railroad, 100 Mo. 228. (3) And even though the direct statement of the witness Rick, that Ryan stepped off, may seem stronger than the inference raising from the testimony of Moore and Van Hook, yet, if the circumstances were more favorable to the theory that Ryan was "tilted off or thrown off," the jury might disbelieve Rick, or the jury might disregard his testimony because of his relation to defendant. Steamboat v. Matthews, 28 Mo. 248; Gregory v. Chambers, 78 Mo. 299. (4) Although the employment was dangerous, Ryan was not bound to accept dangers not incident to his work but occasioned by defendant's negligent dropping off the beam from the derrick. Thorpe v. Railroad, 89 Mo. 662, and cases cited; Huhn v. Railroad, 92 Mo. 440; Brown v. Railroad, 99 Mo. 310.

Pollard & Werner and Wentworth Terry for respondent.

(1) There are no errors assigned. (2) If the whole evidence taken together is such that, if it had been submitted and the jury had found a verdict for plaintiff, it would have been the duty of the trial court to order a new trial, this court will not reverse for a refusal so to submit. Landis v. Hamilton, 77 Mo. 555; Powell v. Railroad, 76 Mo. 80; Jackson v. Hardin, 83 Mo. 175. The rule is well settled in this state that a mere scintilla of evidence will not answer as a basis on which to rest a verdict. O'Hare v. Railroad, 95 Mo. 662. (3) A party introducing a witness represents him to the court as worthy of credit, and stands as his indorser, and can not discredit him, though he may contradict him by showing, by other witnesses, that a fact testified to by him is different from that testified to by such witness. 1 Greenleaf on Ev. [14 Ed. 1883], sec. 442, p. 538; 1 Wharton on Ev. [3 Ed. 1888], sec. 549; 2 Best on Ev. [1 Am. Ed. 1876], sec. 645, p. 1080; Bensberg v. Harris, 46 Mo.App. 404.

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.

OPINION

Page 534

[123 Mo. 638] Barclay, J.

This is an action for statutory damages ($ 5,000) for the death of Thomas Ryan.

[123 Mo. 639] Plaintiff is his widow. She charges defendant with causing her husband's death by negligence.

Defendant's answer makes a countercharge of contributory negligence on the part of Mr. Ryan; but admits the fact of his death and that he was in the employ of defendant.

The allegations in the petition which indicate the ground of plaintiff's claim are as follows:

"Plaintiff states that on the tenth day of December, 1891, her said husband was employed by defendant to assist in erecting the scaffolding for an iron bridge which said defendant was building across the railroad tracks on Twenty-first street in this city; that in the course of his employment he was required to stand upon a wooden beam, which was only twelve inches square and eighteen feet long; said beam rested on two long beams, one under each end, and was suspended twenty feet from the ground; there was no railing, ladder, guard or any other support along said beam to protect her husband from falling while...

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