Keegan v. Kavanaugh

Citation62 Mo. 230
PartiesSARAH KEEGAN, Respondent, v. DANIEL KAVANAUGH, et al., Appellants.
Decision Date31 January 1876
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court.

M. McKeag, for Appellants, cited Butcher vs. Death & Trusdale, 15 Mo., 271; Stiel vs. Ackli, 15 Mo., 291; Jones vs. Yeager, 2 Dillon, 64; Devitt vs. Pac. R. R. Co., 50 Mo., 302, and cas. cit.; Wright vs. N. R. C. R. R. Co., 25 N. Y., 566, 570; Hayden vs. S. M. Co., 29 Conn., 548; Callahan vs. Warne, et al., 40 Mo., 317; Foley vs. Alkire, 52 Mo., 317; Const. Mo., Art. I, § 17; Hale's Com. Law, vol. 2, p. 138; Lord Coke's First Inst., ch. 12, § 234, n. d.; Bank of Mo. vs. Anderson, 1 Mo., 234; Wagn. Stat., ch. 80, p. 800, § 22; Hudson vs. St. L., K. C. & N. R. R. Co., 53 Mo., 525; C. & A. R. R. vs. Adler, 56 Ill., 344.

A. J. P. Garesche, for Respondent, cited Hudson vs. St. L., K. C. & N. R. R. Co., 53 Mo., 537; Shearm. & Redf. Negl., 3d ed., pp. 125, 126, § 96; Patterson vs. Pittsburg & Connellsville R. R., 76 Pa., 393; Clark vs. Noxo, 7 Hurle & N. (Ex.), 937; Snow vs. R. R., 8 Allen, 441; Perry vs. Marsh, 25 Ala., 668; Smith vs. City of St. Joseph, 45 Mo., 449; Norton vs. Ittner, 56 Mo., 353; Meyer vs. Chicago R. R., 59 Mo., 229; Huelsenkamp vs. Citizens R. R. Co., 34 Mo., 54; Kennedy vs. N. M. R. R. Co., 36 Mo., 364; Leddy vs. St. L. R. R. Co., 40 Mo., 519; McPheeters vs. Han. & St. Jo. R. R. Co., 45 Mo., 24; Kennedy vs. Pacific R. R. Co., 45 Mo., 258; Brown vs. Han. & St. Jo. R. R. Co., 50 Mo., 466.

NAPTON, Judge, delivered the opinion of the court.

This was a suit by the wife of Keegan to recover damages from his employers, on account of said Keegan being killed by the fall of an embankment of earth, through the negligence of defendants.

The answer set up as a defense, that the deceased was a hod carrier, and had ample opportunity to know the defects of said earthen wall, and therefore defendants were not responsible.

The replication avers, that Keegan “was re-assured in the fear he felt as to the safety of his working by the assurance of Burns, one of the defendants, that there was no danger.”

The proof was, that the plaintiff's husband was a hod carrier in the employment of defendants, who were engaged in building a stone wall, at the foot of an embankment of earth, some twenty or thirty feet deep, and that the earth embankment was not shored or propped, and that, by reason of the failure to have the embankment protected, the plaintiff's husband was killed.

Keegan indicated some reluctance to go down, but upon a positive order from one of the defendants, he did so, and was killed.

There was evidence to show that such embankment ought to have been propped up or shored.

The jury found a verdict for plaintiff, which was followed by a judgment, from which the appeal is to this court.

The first question in this case is, as to the competency of four of the panel of jurors, who were asked, if in the event that the testimony on the trial was evenly balanced, they might not incline to the side of the plaintiff, the wife of the man killed. To this question they all answered in the affirmative.

This is substantially the same question passed on by this court in Hudson vs. St. Louis, K. C. & N. R. R. (53 Mo., 537), the only difference being, that in the case cited, the suit was against a corporation, and in the present case brought by a woman. The answer to such questions would probably be in ninety-nine cases out of a hundred, just such as the jurors gave in both cases.

We think that no such questions are authorized. The statute, providing for impartial jurors, determines substantially what facts shall disqualify. If counsel are allowed to go into hypothetical assumptions of how the evidence will turn out on the trial, and how in certain contingencies jurors would act, it would be impossible to get juries. It is for the court to instruct the jury on such questions, and if the jury disregard the instructions of the court, it is the duty of the court to set the verdict aside.

It is undoubtedly the duty of a master, where his servant is engaged in hazardous employments, to see that every reasonable precaution on his part, to insure safety, is observed. The primary duty of the servant is obedience, and it is not to be expected that he will, upon mere imaginary danger, of which he may be conscious, assert his right to relinquish his employment. He naturally looks to his employer for the observance of all reasonable and proper precautions, and his continuance in the service when such precautions have not been observed, is rather to be attributed to confidence reposed in those to whose superior judgment he yields.

If the risk is such as to be perfectly obvious to the sense of any man, whether servant or master, then the servant assumes the risk. But if it is a case where no such obvious risks are incurred, and where it was fair to presume that the employee had been guilty of no negligence, the rule of law as well as of common sense and justice is, that the master is responsible for damages, if any ensue.

In this case, the evidence shows that Keegan, the laborer, was not without apprehensions, but when one of his employers ordered him to go down, he did so promptly, upon the assurance implied by such an order, that there was no danger. That the employer did not feel the same assurance was indicated by his going off to another part of the work. The superior...

To continue reading

Request your trial
141 cases
  • Ingram v. Prairie Block Coal Co.
    • United States
    • Missouri Supreme Court
    • March 24, 1928
    ...would not undertake the task. And whether it is such, is always a question for the jury. Stephens v. Railroad, 96 Mo. 207; Keegan v. Kavanaugh, 62 Mo. 230; Nash v. Lead Co., 238 S.W. 584; Hall v. Coal Co., 260 Mo. 351. (2) The Elmira Coal Company was liable for debts of Prairie Block Coal C......
  • Meierotto v. Thompson
    • United States
    • Missouri Supreme Court
    • March 10, 1947
    ...v. Thompson, 348 Mo. 832, 156 S.W. (2d) 652; Stephens v. Hannibal & St. J. Ry Co., 86 Mo. 221, s.c. 96 Mo. 207, 9 S.W. 589; Keegan v. Kavanaugh, 62 Mo. 230; Atlantic Coast Line R. Co. v. Banks, 288 Fed. 826; Coal & Coke Ry. Co. v. Deal, 231 Fed. 604. (7) There was substantial evidence that ......
  • Pritchard v. Thompson
    • United States
    • Missouri Supreme Court
    • October 30, 1941
    ...1075; Sullivan v. Hannibal & St. Joseph Ry. Co., 107 Mo. 66, 17 S.W. 748; Savage v. Ratterman Bldg. & Cont. Co., 214 S.W. 290; Keegan v. Kavanaugh, 62 Mo. 230; Fisher v. Webb Kunze Const. Co., 263 S.W. 1022; Bequette v. Pittsburgh Plate Glass Co., 200 Mo. App. 506, 207 S.W. 852; Corby v. Mi......
  • Crane v. Foundry Co.
    • United States
    • Missouri Supreme Court
    • March 29, 1929
    ...an implied assurance that the track and switch were reasonably safe, and that plaintiff could proceed with safety thereover. [Keegan v. Kavanaugh, 62 Mo. 230, 232; Bane v. Irwin, 172 Mo. 306, 316; Clark, v. Foundry Co., 234 Mo. 436, 450; Barnard v. Brick and Coal Co., 189 Mo. App. 417, 421;......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT