44 S.W. 257 (Mo. 1898), Hoepper v. Southern Hotel Co.

Citation:44 S.W. 257, 142 Mo. 378
Opinion Judge:Macfarlane, J.
Party Name:Hoepper v. Southern Hotel Company, Appellant
Attorney:A. & J. F. Lee for appellant. A. R. Taylor for respondent.
Judge Panel:Macfarlane, J. Barclay, C. J., and Robinson and Brace, JJ., concur.
Case Date:January 29, 1898
Court:Supreme Court of Missouri
 
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Page 257

44 S.W. 257 (Mo. 1898)

142 Mo. 378

Hoepper

v.

Southern Hotel Company, Appellant

Supreme Court of Missouri, First Division

January 29, 1898

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Affirmed.

A. & J. F. Lee for appellant.

(1) The plaintiff has no cause to complain in any event, as the verdict on the evidence should have been for the defendant for the following reasons: First. Plaintiff was not fulfilling the duties of her employment when injured, and there is no evidence of neglect of duty by defendant. Troth v. Norcross, 111 Mo. 630; Ring v. Railroad, 112 Mo. 220; O'Donnell v. Baum, 38 Mo.App. 245; Sparks v. Railroad, 31 Mo.App. 111; Blanton v. Dold, 109 Mo. 64; McDonald v. Crystal Plate Glass Co., 9 Mo.App. 577; Covey v. Railroad, 86 Mo. 635. Second. The negligence of defendant, charged by plaintiff, if true, would not be the proximate cause of plaintiff's injury. Cooley on Torts, p. 69; Bishop on Non-Con. Law, sec. 43; Sher. and Red. on Neg., sec. 57; O'Malley v. Railroad, 113 Mo. 319; Porter v. Anheuser-Busch, Etc., 24 Mo.App. 1; Hicks v. Railroad, 46 Mo.App. 304; Greenland v. Chaplin, 5 Ex. 248; Gerhard v. Bates, 2 Ell. and Bl. 490; Wharton on Neg., sec. 78; Christy v. Hughes, 24 Mo.App. 275. Third. The negligence of plaintiff herself, which was glaring and fool-hardy, was the direct and sole cause of her injuries. Webber v. Railroad, 100 Mo. 194; Carroll v. Interstate Transit Co., 107 Mo. 653; Corcoran v. Railroad, 105 Mo. 399; Gleason v. Excelsior Mfg. Co., 94 Mo. 201; Covey v. Railroad, 86 Mo. 635; Current v. Railroad, 86 Mo. 62; Smith v. Railroad, 69 Mo. 32; Kinney v. City of Springfield, 35 Mo.App. 97; Fukes v. Railroad, 111 Mo. 335; Junior v. Electric Light Co., 127 Mo. 79. (2) If the above points are well taken, the verdict and judgment rendered in favor of defendant should have been permitted to stand, and the order granting a new trial should now be reversed, even though the instructions given by the court at the request of the defendant were erroneous and misleading, because the error would be harmless. Gray v. Worst, 129 Mo. 136; Fox v. Windes, 127 Mo. 502; Overholt v. Vieths, 93 Mo. 422; Randle et al. v. Railroad, 35 Mo. 325; Boggess v. Railroad, 118 Mo. 328; (3) The instructions are unobjectionable, being neither erroneous nor misleading. Loring v. Railroad, 128 Mo. 349, 357; Yancey v. Railroad; 93 Mo. 433; Kelly v. Railroad; 101 Mo. 67; Hudson v. Railroad, 101 Mo. 13; Tetherow v. Railroad, 98 Mo. 74; Karle v. Railroad, 55 Mo. 476. (4) All the instructions taken together are complete, and prevent the possibility of the jury's having been misled or misdirected. Hughes v. Railroad, 127 Mo. 447; Scott-Force Hat Co. v. Hombs, 127 Mo. 392.

A. R. Taylor for respondent.

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

OPINION

[142 Mo. 380] Macfarlane, J.

This is a suit to recover damages for personal injuries received by plaintiff on account of [142 Mo. 381] the alleged negligence of defendant in providing for her use, as an employee, defective and dangerous machinery.

The petition charges that "on the 14th day of May, 1892, the plaintiff was in the service of the defendant, running a certain steam clothes wringer. That said machine and appliances thereof were and had been for a long time prior to said time, in a defective and dangerous condition, as defendant by its agent having charge of keeping the same in repair well knew; that the springs and appliances of said machine were worn out and loose, whereby said appliance ran rough and jerked. That on said day, while plaintiff was in the discharge of the duty of her employment, adjusting clothes in said wringer, owing to said defective condition of said machine the rim of the wringer was caused to strike plaintiff's right arm at the elbow with great force, whereby plaintiff's arm was fractured and muscles and sinews of said arm greatly contused and lacerated, so that her right hand and fingers thereof are drawn out of shape and greatly injured. That defendant was negligent in furnishing said appliances in said defective condition to plaintiff to work with in the discharge of her said employment." Judgment for $ 10,000 is demanded.

By its answer defendant denies these charges, and avers affirmatively that plaintiff's injuries were caused by her own negligence directly contributing thereto.

The wringing machine with which plaintiff was employed to work was run by steam power. The evidence tends to prove that for some time the machine had been so out of repair and worn that the appliance into which the clothes were placed ran "roughly and jerked" by reason of which the clothes, placed therein for drying, did not always remain in proper position and required adjustment. In order to adjust the [142 Mo. 382] clothes when thrown out of place, it was necessary for the operator to put her hand into the basket, as...

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