7 S.W. 188 (Mo. 1888), Gleason v. Excelsior Mfg. Co.

Citation:7 S.W. 188, 94 Mo. 201
Opinion Judge:Norton, C. J.
Party Name:Gleeson v. The Excelsior Manufacturing Company, Appellant
Attorney:C. P. & J. D. Johnson for appellant. A. R. Taylor and M. McKeag for respondent.
Judge Panel:Norton, C. J. Ray, absent.
Case Date:February 20, 1888
Court:Supreme Court of Missouri
 
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Page 188

7 S.W. 188 (Mo. 1888)

94 Mo. 201

Gleeson

v.

The Excelsior Manufacturing Company, Appellant

Supreme Court of Missouri

February 20, 1888

Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed.

C. P. & J. D. Johnson for appellant.

(1) There was no evidence tending to show that the injuries to the deceased were the result of negligence upon the part of the defendant. (2) Hence, the facts being undisputed, the case should have been taken from the jury. Powell v. Railroad, 76 Mo. 82; Callahan v. Warne, 40 Mo. 136; Maher v. Railroad, 64 Mo. 267; Harlan v. Railroad, 64 Mo. 480; Buesching v. Gas Light Co., 73 Mo. 219; Nolan v. Shickle, 69 Mo. 337; Lenix v. Railroad, 76 Mo. 90; Taylor v. Railroad, 86 Mo. 462. (3) But conceding, for the sake of argument, that defendant was guilty of negligence in maintaining a hatchway without guards, still it is not liable in this action, inasmuch as deceased was employed to close the hatchway when left open, and knew that it was unguarded, notwithstanding which he continued in the employment, thereby assuming the risks incident to the same. Davitt v. Railroad, 50 Mo. 302; Porter v. Railroad, 71 Mo. 77; Price v. Railroad, 77 Mo. 510; McDermott v. Railroad, 87 Mo. 297; Rains v. Railroad, 71 Mo. 168; Dowliny v. Allen, 74 Mo. 16; Smith v. Railroad, 69 Mo. 39; Porter v. Railroad, 71 Mo. 66; Cagney v. Railroad, 69 Mo. 423; Siela v. Railroad, 82 Mo. 439; Conroy v. Vulcan Iron Works, 62 Mo. 37.

A. R. Taylor and M. McKeag for respondent.

(1) If the testimony of plaintiff's witnesses conduced to prove the allegations in plaintiff's petition, but in a slight degree, it was the duty of the lower court to submit the matter to the jury, and not sustain a demurrer to the evidence, and as this court has very properly heretofore said: "In passing upon the demurrer the court will make every inference of fact in favor of the party offering the evidence which the evidence warrants, and which the jury might with any degree of propriety have inferred." Wilson v. The Board of Education, 63 Mo. 137. If there was even a substantial doubt, the issues presented by the pleadings and evidence were facts for the jury and a non-suit or demurrer to the evidence was not proper. Thorpe v. Railroad, 89 Mo. 650, and cases cited. (2) There was no doubt about the fact that there were no guards around the hatchway at the time the...

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