7 S.W. 476 (Mo. 1888), Gutridge v. Missouri Pacific Railway Co.
|Citation:||7 S.W. 476, 94 Mo. 468|
|Opinion Judge:||Black, J.|
|Party Name:||Gutridge v. The Missouri Pacific Railway Company, Appellant|
|Attorney:||Thos. J. Portis with Thos. G. Portis and Wm. S. Shirk for appellant. Fyke & Calvird and J. La Due for respondent.|
|Judge Panel:||Black, J. Ray, J., absent; Brace, J., dissents.|
|Case Date:||March 19, 1888|
|Court:||Supreme Court of Missouri|
Appeal from Henry Circuit Court. -- Hon. James B. Gantt, Judge.
Reversed and remanded.
(1) The demurrer to plaintiff's evidence should have been sustained. It was alleged in the petition that the defect was in the original construction and there was no evidence to sustain the allegation. The evidence shows that if the hand-hold was insecure it had become so by use and lapse of time. Current v. Railroad, 86 Mo. 62; Ely v. Railroad, 77 Mo. 34; Benson v. Railroad, 78 Mo. 504; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Bullene v. Smith, 73 Mo. 151. (2) The demurrer to the evidence should have been sustained on another ground: The hand-hold came loose from the car, by reason of all four of the screws by which it was held pulling out of the wood. There is no evidence whatever that it could have been discovered by an examination or inspection, made before the hand-hold pulled off, that it was not reasonably safe and sufficient for the purpose for which it was being used. Without this proof, plaintiff had no case. Pierce on Railways, 370-1-2, 3, and 382; Wood on Master and Servant, sec. 348; Current v. Railroad, 86 Mo. 62 and cases cited. (3) It was error to permit the witness, Slack, to give his opinion as a carpenter, that, "from the appearance of the top of the car there, the holes and what he saw," it could have been discovered, by reasonable inspection, that the hand-hold was not tightly fastened to the top of that car, before it broke loose. Railroad v. Peevy, 11 Am. & Eng. R. R. Cas. 261; Gaviske v. Railroad, 49 Mo. 277; Koontz v. Railroad, 65 Mo. 597-8; Greenwell v. Crow, 73 Mo. 638; Eyerman v. Sheehan, 52 Mo. 221; Couch v. Railroad, 28 Am. & Eng. R. R. Cas. 331; Sparr v. Wellman, 11 Mo. 230; Winters v. Railroad, 39 Mo. 468; Rosenheim v. Ins. Co., 33 Mo. 23; Brown v. Plank Road Co., 89 Mo. 152; Best on Evid., secs. 511, 517. (4) It was not the duty of defendant to inspect the car. Defendant had also the right to assume that the company owning said car, had performed its duties with reference to inspecting such car from time to time, and that, at the time it was placed on defendant's road, it was reasonably safe and sufficient for the purposes for which it was being used. Ballou v. Railroad, 5 Am. & Eng. R. R. Cas. 480; Baldwin v. Railroad, 50 Iowa 680; Mackin v. Railroad, 135 Mass. 201.
(1) The demurrer to the evidence was properly overruled. Buesching v. Gas Light Co., 73 Mo. 219; Baker v. Railroad, 95 Pa. 211; Railroad v. Brinson, 64 Ga. 475; Railroad v. Delahunty, 53 Tex. 206. (2) It...
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