59 Mo. 474 (Mo. 1875), Matthews v. St. Louis Grain Elevator Co.

Citation:59 Mo. 474
Opinion Judge:NAPTON, Judge.
Party Name:BRIDGET MATTHEWS, Respondent, v. THE ST. LOUIS GRAIN ELEVATOR COMPANY, Appellant.
Attorney:Slayback & Haeussler, for Appellant. Morris & Peabody, for Respondent.
Court:Supreme Court of Missouri
 
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Page 474

59 Mo. 474 (Mo. 1875)

BRIDGET MATTHEWS, Respondent,

v.

THE ST. LOUIS GRAIN ELEVATOR COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1875

Appeal from St. Louis Circuit Court.

This case was formerly before this court. See 50 Mo. 149.

Slayback & Haeussler, for Appellant.

If defendant did remove the earth from about the pole, Matthews knowing the fact, and being aware of what he was doing, his own negligence was the immediate cause of his own misfortune. And the fact of defendant having removed the earth, was a circumstance too remote in the order of causation for plaintiff to recover. (Cuff vs. Newark & N.Y. R?? R. Co., 6 Vroom, [N. J.] R. 32; Fitzsimmons vs. Inglis, 5 Taunt. 534; 4 C. & P., 262; 11 C. B. [N. S.] 142; 11 Metc. 542; 35 N.H. 271; 8 Ohio St. 570; 14 C. B., 411; 20 Penn. St., 171; 1 H. & C. 152; 26 Ala. 189.)

Morris & Peabody, for Respondent.

The court's instruction was wrong. The fact that Matthews knew of the condition of the pole, or might by proper diligence have known of its condition, was not itself proof of negligence in climbing it. Whether under the circumstances he was negligent, was a question to be submitted to the jury. (See S. C., 50 Mo. 149; Smith vs. St. Jo., 45 Mo. 449; Smith vs. City of Lowell, 6 Allen 39; Reed vs. Inhab. Northfield, 13 Pick. 94; Clayards vs. Dettrick, 12 Ad. & El., 439; Maloney vs. Met. R. R. Co., 104 Mass. 73; Newson vs. N.Y. Cent. R. R. Co., 29 N.Y. 383.)

OPINION

NAPTON, Judge.

This action is one instituted by the widow of John Matthews, to recover the statutory penalty of $5,000, on account of her husband's death, which she claims occurred through the negligence of this defendant.

The case was submitted to a jury on instructions, and the jury found a verdict for the defendant. The only point upon which the case comes here, is, that the instructions were wrong.

The facts seem to be in the main quite clear. The Elevator Company had at their office a connexion with the main lines of the Telegraph Co., by means of a wire called a " guy," and designing to remove their office for a short distance, they requested the telegraph company to send some one to remove the pole, on which the wires were suspended, to a place more convenient for keeping up the connexion with their office. John Matthews, who had been for years employed in business of this kind by...

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