30 S.W. 125 (Mo. 1895), Settle v. St. Louis & San Francisco Railroad Company

Citation:30 S.W. 125, 127 Mo. 336
Opinion Judge:Macfarlane, J.
Party Name:Settle v. The St. Louis & San Francisco Railroad Company, Appellant
Attorney:E. D. Kenna, L. F. Parker and H. S. Abbott for appellant. Cloud & Davies and T. D. Steele for respondent.
Case Date:March 12, 1895
Court:Supreme Court of Missouri

Page 125

30 S.W. 125 (Mo. 1895)

127 Mo. 336

Settle

v.

The St. Louis & San Francisco Railroad Company, Appellant

Supreme Court of Missouri, First Division

March 12, 1895

Appeal from Lawrence Circuit Court. -- Hon. W. M. Robinson, Judge.

Affirmed.

E. D. Kenna, L. F. Parker and H. S. Abbott for appellant.

(1) There is absolutely no evidence of negligence on the part of defendant, and the court properly so instructs the jury. Cotton v. Wood, 8 C. B. (N. S.) 568; Bothwell v. Railroad, 59 Iowa 192; Railroad v. State, 71 Md. 590; Paris v. Company, 15 Wall. 524; Wharton on Negligence, sec. 421; Railroad v. Schertle, 97 Pa. St. 450; Baulec v. Railroad, 59 N.Y. 356. (2) There is no evidence from which it can fairly be inferred that the bent condition of the handhold in any way contributed to the accident which resulted in the death of the plaintiff's husband. Orth v. Railroad, 47 Minn. 384; Hughes v. Railroad, 91 Ky. 526; Wintuska's Adm'r v. Railroad, 20 S.W. 819; Mining Company v. Kitts, 42 Mich. 34; Railroad v. Allen's Adm'r, 78 Ala. 494; Railroad v. Dowell, 62 Iowa 629; Asbach v. Railroad, 74 Iowa 248; Ash v. Verlenden, 154 Pa. St. 246; Railroad v. State, 73 Md. 74; Perkins v. Railroad, 103 Mo. 52; Yarnell v. Railroad, 113 Mo. 570. (3) The condition of the handhold was obvious, and the accident to plaintiff's husband was one of the risks incident to his employment. Hathaway v. Railroad, 51 Mich. 253; Thomas v. Railroad, 109 Mo. 187; Fugler v. Bothe, 117 Mo. 475; Williams v. Railroad, 119 Mo. 316.

Cloud & Davies and T. D. Steele for respondent.

(1) The condition of the handhold is undisputed and it shows negligence on defendant's part. Gutridge v. Railroad, 94 Mo. 474; Sullivan v. Railroad, 97 Mo. 113; Condon v. Railroad, 78 Mo. 567. (2) The evidence was sufficient to justify the inference that the condition of the handhold was the cause of the injury. Soeder v. Railroad, 100 Mo. 673. The presumption exists that deceased was exercising due care. Flynn v. Railroad, 78 Mo. 195; Buesching v. Gas Co., 73 Mo. 229. (3) Deceased has the right to assume that defendant would furnish him with reasonably safe machinery. Parsons v. Railroad, 94 Mo. 195; Condon v. Railroad, 78 Mo. 567; Abel v. President, etc., 128 N.Y. 662; Railroad v. Triplett, 15 S.W. 831; Lanigan v. Railroad, 72 Mo. 392.

OPINION

[127 Mo. 338] Macfarlane, J.

Plaintiff sues, under the provisions of the laws of the state of Kansas, for the death of her husband, William F. Settle, which occurred in said state in January, 1892, while in the employment of defendant as a brakeman.

The petition contains three counts, which do not differ materially in their averments of negligence. The charge of negligence is that the handhold, on the end of one of defendant's cars, which was provided for the use of plaintiff and other brakemen, was permitted "to get out of repair and in dangerous condition, having been mashed in so it could not be readily grasped with the hand, and that by reason thereof, while deceased was performing his duties he lost his hold and fell from the car, and was run over, receiving injuries from which he died." The answer was a general denial.

At the close of the evidence offered by plaintiff, the court directed a verdict for defendant. This verdict the court afterward set aside, on motion of plaintiff, and granted a new trial, and from this order defendant appealed. The only question to determine, therefore, is whether there was evidence of negligence and the resulting death therefrom, which should have been submitted to the jury; if there was, then the new trial was properly granted...

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