77 S.W. 764 (Mo.App. 1903), Leitner v. Grieb

Citation:77 S.W. 764, 104 Mo.App. 173
Opinion Judge:BROADDUS, J.
Party Name:FRANK LEITNER, by next friend, Respondent, v. LOUIS GRIEB, Appellant
Attorney:Harkless, O'Grady & Crysler for appellant. Kagy & Horn for respondent. Filed an extended argument.
Case Date:November 09, 1903
Court:Court of Appeals of Missouri

Page 764

77 S.W. 764 (Mo.App. 1903)

104 Mo.App. 173

FRANK LEITNER, by next friend, Respondent,

v.

LOUIS GRIEB, Appellant

Court of Appeals of Missouri, Kansas City

November 9, 1903

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

REVERSED.

Cause reversed.

Harkless, O'Grady & Crysler for appellant.

The plaintiff, under the undisputed evidence, was not entitled to recover and the court should have given a peremptory instruction to return a verdict for defendant, and also instruction No. 2 asked by defendant. Harff v. Green, 67 S.W. 576 (not reported); Lampson v. American Ax Co., 58 N.E. 585, 177 Mass. 144; Worlds v. Railroad, 52 S.E. 646, 99 Ga. 283.

Kagy & Horn for respondent.

Filed an extended argument.

OPINION

[104 Mo.App. 174] BROADDUS, J.

This suit is for damages alleged to have been sustained by reason of an injury caused by the negligence of defendant. The answer was a general denial and allegations of contributory negligence on the part of plaintiff and assumption by him of the risk. The facts given in evidence to support plaintiff's cause of action briefly stated are as follows:

Plaintiff at the time of the injury was a young man about eighteen years of age in the employ of defendant and had been for a while previous to his alleged injury engaged in handling stone; at the time of his said injury [104 Mo.App. 175] he and another workman by the name of Smith were required by defendant to remove a large stone to

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a trench which had been dug for a foundation which defendant with his laborers were then engaged in building; both plaintiff and said Smith suggested to defendant that on account of the great size of said stone they ought to have another man to assist them; that defendant told them to roll the stone into the ditch; that if they could not, "to leave the job"--or words substantially of the same import; thereupon plaintiff and Smith placed the crowbars which they had for the purpose under the stone and endeavored by raising the ends in their hands to move the stone as required; the stone was lying on some loose earth on account of which either plaintiff's bar or the rock slipped; plaintiff had the end of the bar over his shoulder and when the bar or rock so slipped the additional weight thus caused to be thrown upon it caused the said bar to slide down on plaintiff's arm...

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