Ephland v. Missouri Pacific Railway Company

• Decision Date: 26 January 1897
• Citation: 38 S.W. 926,137 Mo. 196
• Parties: Ephland v. Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

38 S.W. 926

137 Mo. 196

Ephland v. Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

January 26, 1897

137 Mo. 187 at 196.

Original Opinion of January 26, 1897, Reported at: 137 Mo. 187.

Motion overruled.

Macfarlane J. Robinson, J., is absent.

OPINION

ON MOTION FOR REHEARING.

Macfarlane J.

On motion for rehearing counsel for defendant insists, in effect, that any waiver of other errors than the one considered in the foregoing opinion was intended to apply only to the submission of the case in the Kansas City court of appeals.

The court's error in considering the waiver as general was a natural one, inasmuch as the case was submitted to this court, without argument, upon the briefs filed in the court of appeals.

The chief complaint now made is the refusal of the court to give instruction 5 asked by defendant, which is as follows:

"If the jury believe from the evidence that William Lamb was not in the west cupola, nor at the brake, from the time the train left Butler until the accident complained of, your verdict must be for the defendant."

The legal proposition involved in this instruction is, that if brakeman Lamb was not at the brake, or in other words, if he had no duty to perform in the car, defendant is not answerable for his negligent exclamations. Without setting out the instruction, on account of criticisms made to its form, we undertook, in the opinion, to answer the legal question. We are still satisfied with the conclusion reached viz., that if Lamb was employed by defendant as a brakeman to assist in operating the train, in the circumstances shown defendant should answer for his negligence, and it would make no difference what his local position in the car may have been, or whether he had any duty to perform therein or not. In the opinion we assume that Lamb was not at the brake, and the question was fairly considered.

The instruction for the reason given in the opinion was properly refused.

What is said in the opinion is also a sufficient answer to the objection now urged to the ruling of the court in refusing defendant's demurrer to the evidence. But see, also, companion case of McPeak v. Railroad, 128 Mo. 617, 30 S.W. 170, opinion by Gantt, J.

Defendant asked the court to instruct the jury that, "what plaintiff testified to against his own interest is to be taken as true." The instruction was refused by the court, and cou...