36 S.W. 214 (Mo. 1896), Gardner v. St. Louis & San Francisco Railway Company

Citation:36 S.W. 214, 135 Mo. 90
Opinion Judge:Burgess, J.
Party Name:Gardner, Appellant, v. St. Louis & San Francisco Railway Company
Attorney:John W. Leake, Cloud & Davies, Joseph French, and W. B. Skinner for appellant. L. F. Parker for respondent.
Judge Panel:Burgess, J. Gantt, P. J., and Sherwood, J., concur. Finding no reversible error in the record, the judgment is affirmed. Gantt, P. J., and Sherwood, J., concur.
Case Date:June 16, 1896
Court:Supreme Court of Missouri

Page 214

36 S.W. 214 (Mo. 1896)

135 Mo. 90

Gardner, Appellant,

v.

St. Louis & San Francisco Railway Company

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from Lawrence Circuit Court. -- Henry Brumback, Esq., Special Judge.

Affirmed.

John W. Leake, Cloud & Davies, Joseph French, and W. B. Skinner for appellant.

(1) There was evidence tending to show that the insufficiency of the safety chains contributed to the accident, and that the purpose of said chains, in part, was to hold the engine and tender together in case of the breaking of the drawbar or kingbolt. And the question of the sufficiency of the safety chains should have been submitted to the jury, and the instruction asked by plaintiff covering that point should have been given, and that given by the court of its own motion did not present all the issues. It is well settled law, that instructions should be predicated on the whole testimony, and when they have a tendency to restrict the jury to isolated facts, to the exclusion of other facts which are before them in evidence, it is not only a misdirection, but an infringement on the province of the triers of the fact. Chappell v. Allen, 38 Mo. 213; Raysdon v. Triumbo, 52 Mo. 35; Compton v. Baker, 34 Mo.App. 133. (2) The admission in evidence of the book purporting to be the mayor's docket from Garfield, was clearly error. The same was not properly authenticated, and if it had been, was not competent or proper to discredit the witness by evidence of violation of city ordinances, or of convictions for misdemeanors. State v. Taylor, 98 Mo. 240. (3) The testimony introduced by defendant to show how plaintiff's witnesses, Ford, Blancet, and Baxler, were registered at the Hotel Porter, under fictitious names, by Mr. Leake, one of the attorneys, was clearly irrelevant and immaterial, and the refusal of the court to permit Mr. Leake to explain this circumstance, was also error. (4) The testimony offered by plaintiff, tending to prove, for the purpose of showing knowledge on the part of defendant, of the dangerous character of the machinery, that the use of the Consolidated engine had been abandoned by the defendant on that part of the road, and that they were not then in general use, should have been admitted. Crane v. Railroad, 87 Mo. 588. (5) Under the issues made in this case, not only specific defects of this particular engine complained of, was in issue, but the general defects of consolidated engines as a class, was also put in issue, and some testimony was admitted on this point. It was competent to have admitted testimony tending to prove that these general defects existed, and that defendant knew it, yet the court excluded all evidence of other engines of a different construction, used by defendant, in which such defects did not exist, and comparison therewith. This, too, after it had been proved by defendant's own witnesses that this engine had been constructed for defendant on a special order for such engines. Comparisons with other engines should have been permitted. Huhn v. Railroad, 92 Mo. 448; 1 Thompson on Neg., pp. 152-156; Spaulding v. Railroad, 30 Wis. 110; Railroad v. Pindar, 53 Ill. 447; Turnpike Co. v. Railroad, 54 Pa. St. 345; Anderson v. Co., 64 N.C. 399; Railroad v. Gilham, 39 Ill. 445; Longabaugh v. Railroad, 9 Nev. 271; Bevier v. Railroad, 13 Hun, 254; Hoyt v. Jeffers, 30 Mich. 181; Railroad v. Corn, 71 Ill. 493.

L. F. Parker for respondent.

(1) The court permitted no reversible error in permitting the docket of the justice of the peace to be read to the jury; and if the admission of that testimony was error, it was waived by the plaintiff by introducing evidence of like character with reference to a witness for the defendant. Nitchie v. Earle, 19 N.E. 749; Perkins v. Hayward, 24 N.E. 1033; State v. O'Brien, 46 N.W. 861; Reed v. New, 12 P. 139; Minton v. Lumber Co., 48 N.W. 857; Railroad v. Wiebe, 41 N.W. 297; Howell v. Graff, 41 N.W. 142. (2) The first instruction asked by the plaintiff was faulty, in that it ignored the question of reasonable care on the part of the defendant, as the measure of its duty, and an instruction with reference to the duty of the master to a servant, in respect of furnishing machinery and appliances, is...

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