4 S.W. 937 (Mo. 1887), Huhn v. Missouri Pac. Ry. Co.

Citation:4 S.W. 937, 92 Mo. 440
Opinion Judge:Black, J.
Party Name:Huhn v. The Missouri Pacific Railway Company, Appellant
Attorney:Adams & Bowles with Thos. J. Portis for appellant. Gates & Wallace and John A. Sea for respondent.
Case Date:June 06, 1887
Court:Supreme Court of Missouri
 
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Page 937

4 S.W. 937 (Mo. 1887)

92 Mo. 440

Huhn

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

Adams & Bowles with Thos. J. Portis for appellant.

(1) The court erred in admitting the opinions of plaintiff's witnesses in evidence, as to the comparative safety to employes of blocked, and unblocked, frogs and switches. Hopkins v. Railroad, 74 Ill. 32; Chicago v. McGiven, 74 Ill 347. (2) The defendant's instruction, in the nature of a demurrer to the evidence, should have been given. There was no conflict in the evidence, and nothing for the jury to find. Cummings v. Collins, 61 Mo. 520; Hulett v. Railroad, 67 Mo. 239; Porter v. Railroad, 71 Mo. 66; Ranes v. Railroad, 71 Mo. 164; Devett v. Railroad, 50 Mo. 302; Smith v. Railroad, 69 Mo. 33; Railroad v. Londergan, 7 N.E. 55; Wonder v. Railroad, 32 Md. 411; Baldwin v. Railroad, 50 Iowa 680; Osborne v. Railroad, 68 Me. 51; Railroad v. Flannigan, 77 Ill. 365; Railroad v. Gilderslieve, 33 Mich. 133; Railroad v. Asbury, 84 Ill. 433; Wills v. Railroad, 56 Iowa 520; Perrego v. Railroad, 52 Iowa 276; Clarke v. Fisher, 1 Paige, 174; Kray v. Railroad, 32 Iowa 357; Randell v. Railroad, 109 U.S. 478; Baylor v. Railroad, 40 N. J. 23; Railroad v. Black, 88 Ill. 112; Sullivan v. Manufacturing Co., 113 Mass. 396; McGlynn v. Railroad, 31 Cal. 376; Way v. Railroad, 40 Iowa 159; Williams v. Railroad, 43 Iowa 396.

Gates & Wallace and John A. Sea for respondent.

(1) The admission of evidence not objected to at the time is not error. Smith v. Dunklin County, 83 Mo. 195; Allen v. Mansfield, 82 Mo. 688; State v. Lett, 85 Mo. 52; Harrison v. Bartlett, 51 Mo. 170; Miller v. Duff, 34 Mo. 167; Waldo v. Russell, 5 Mo. 387. (2) The opinions of experts as to the comparative safety of a mechanical appliance are competent. Perkins v. Stickney, 132 Mass. 217; Hill v. Ins. Co., 129 Mass. 345; Lawrence v. Boston, 119 Mass. 126; Sorg v. The Congregation, 63 Pa. St. 166; Tucker v. Railroad, 118 Mass. 547; Towboat Co. v. Starrs, 69 Pa. St. 41. This was a proper subject for opinion evidence. Baldwin v. Railroad, 50 Iowa 680; Cooper v. Railroad, 44 Iowa 134; Alexander v. Sterling, 71 Ill. 366; Seaver v. Railroad, 14 Gray, 466; Porter v. Manufacturing Co., 17 Conn. 249; Welsh v. Ins. Co., 32 N.Y. 427; Greenwell v. Crow, 73 Mo. 638; Robinson v. Railroad, 21 Mich. 141; Whart. on Evid., sec. 444. (3) Whether it is negligence for the master to furnish, or to fail to furnish, appliances of a particular kind, for the use of the servant, is a question for the jury. Abel v. Canal Co., 5 Cent. Rep. No. 6, 615; Railroad v. McClellan, 84 Ill. 109; Freemouth v. Railroad, 10 Com. Bench [N. S.] 89; Railroad v. Stout, 17 Wall. 657; Marquette v. Railroad, 33 Iowa 566; Wood's Master and Servant [2 Ed.] secs. 357-8-9, pp. 733, 741; also cases under fourth point. (4) Whether a servant waives the negligence of the master, by continuing to use dangerous appliances furnished by the master, after the servant has knowledge of the defects, is, in cases like the one at bar, a question for the jury. This is a question of contributory negligence. Snow v. Railroad, 8 Allen, 441; Plank v. Railroad, 60 N.Y. 607; Dorsey v. Construction Co., 42 Wis. 583; Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Drain v. Railroad, 86 Mo. 574; Petty v. Railroad, 88 Mo. 306; Fernandez v. Railroad, 52 Cal. 45; Patterson v. Railroad, 76 Pa. St. 390; Hawley v. Railroad, 82 N.Y. 370; Lasure v. Manufacturing Co., 18 S.C. 276; Perigo v. Railroad, 55 Iowa 326; Clayards v. Dithic, 12 Q. B. 439; Porter v. Railroad, 60 Mo. 160; Railroad v. Russell, 91 Ill. 298; Wood's Master and Servant [2 Ed.] secs. 357-8-9, pp. 733, 741.

OPINION

[92 Mo. 443] Black, J.

The plaintiff's husband, Charles Huhn, was, and for three or four months had been, defendant's yardmaster, at Independence, Missouri. It appears a freight train was about due at that place, and it became the duty of Huhn, an engineer, fireman, and switchman to set out a car for that train. Huhn directed the switchman to go forward and flag the train. The engine then, with a string of seven cars, pulled out on the main track, and stopped for Huhn to throw the...

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