78 S.W. 60 (Mo.App. 1904), Benedict v. Chicago Great Western Railway Company

Citation:78 S.W. 60, 104 Mo.App. 218
Opinion Judge:BROADDUS, J.
Party Name:FORD W. BENEDICT, Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Respondent
Attorney:C. F. Strop and W. K. Amick for appellant. James C. Davis for respondent.
Case Date:January 04, 1904
Court:Court of Appeals of Missouri
 
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Page 60

78 S.W. 60 (Mo.App. 1904)

104 Mo.App. 218

FORD W. BENEDICT, Appellant,

v.

CHICAGO GREAT WESTERN RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

January 4, 1904

Appeal from Buchanan Circuit Court.--Hon. W. K. James, Judge.

Cause reversed and remanded.

C. F. Strop and W. K. Amick for appellant.

(1) Section 2002 of the statutes of Iowa was introduced in evidence. (2) The courts of this State will enforce the statutes of a sister State. R. S. 1899, sec. 547; Guerney v. Moore, 131 Mo. 650.

James C. Davis for respondent.

(1) In an action by a servant against his master, wherein the former sustains injuries which he charges to be due to the negligence of the latter, no presumption on the part of the latter will be indulged. The negligent act of the master must be established and the burden of establishing it is on the servant. Smith v. Railway, 113 Mo. 70; O'Mallry v. Railway, 113 Mo. 319; Dowell v. Guthrie, 99 Mo. 653; Dowell v. Guthrie, 116 Mo. 646; Murray v. Railway, 101 Mo. 236. (2) The application of an emergency brake upon a locomotive attached to a train in motion is not, of and in itself, a negligent act, and if such application is made it will be presumed that it was made in the proper exercise of the use for which it was intended, unless the contrary appears by evidence. (3) Where there are two ways in which a given act may be performed, and the person engaged in the performance of the act voluntarily selects the dangerous way when a safer one is apparent to him and is thereby injured, he is guilty of contributory negligence. Moore v. Railway, 146 Mo. 572; Bolt & Iron Co. v. Brenhen, 20 Ill.App. 555; Bolt & Iron Co. v. Burke, 12 Ill.App. 369; Anderson v. Railway, 39 Minn. 523.

OPINION

[104 Mo.App. 219] BROADDUS, J.

The plaintiff was a rear brakeman on one of the defendant's freight trains. The train on which he was injured was going from Des Moines, Iowa, to St. Joseph, Mo., on March 16, 1901. There were sixteen cars in the train. The first ten cars back from the engine were equipped with the airbrake; the six rear cars were not equipped with the airbrake. The airbrake was controlled and operated by the engineer on the engine. For all ordinary stops, such as stopping at stations and water tanks, and all cases except emergency, the "service stop," as it was termed, was used. The "service stop"...

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