8 S.W. 562 (Mo. 1888), Harty v. St. Louis, Iron Mountain & Southern Railway Co.
|Citation:||8 S.W. 562, 95 Mo. 368|
|Opinion Judge:||Norton, C. J.|
|Party Name:||Harty v. St. Louis, Iron Mountain & Southern Railway Company, Appellant|
|Attorney:||Bennett Pike and H. G. Herbel for appellant. J. W. Collins and A. R. Taylor for respondent.|
|Case Date:||June 04, 1888|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.
Reversed and remanded.
(1) The court erred in admitting incompetent and illegal evidence offered by plaintiff. (2) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case. Moore v. Railroad, 85 Mo. 588; Hoke v. Railroad, 88 Mo. 369; Railroad v. Smith, 9 Lea, 685; S. C., 15 Am. & Eng. Ry. Cas. 224; McQueen v. Railroad, 15 Am. & Eng. Ry. Cases, 226; Railroad v. Kenney, 64 Ga. 100. (3) The court erred in giving the instructions asked by plaintiff. See authorities supra. (4) The court erred in refusing to give the instructions asked by defendant. See authorities supra.
(1) There are two grounds of recovery stated in the petition, viz., a failure to supply a sufficient number of able-bodied men to operate the hand-car, and, second, that the hand-car was defective and in an unsuitable condition. The evidence of plaintiff tends to establish both assignments. (2) The court did not err in overruling defendant's demurrer to the evidence. Porter v. Railroad, 71 Mo. 77; Porter v. Railroad, 77 Mo. 79; Waldhier v. Railroad, 87 Mo. 48. The section foreman had charge of the men, and in directing them, his acts were those of the master. Moore v. Railroad, 85 Mo. 588; McDermott v. Railroad, 87 Mo. 294; Ischer v. Railroad, ante, p. 262.
[95 Mo. 369]
This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant. Plaintiff had judgment, [95 Mo. 370] from which the defendant has appealed, and assigns for error the action of the court in admitting improper evidence and in giving and refusing instructions.
It is alleged in the petition that plaintiff was in the employment of defendant as a trackman and under the direction of one Frank Roach, defendant's section foreman; that he was ordered by said Roach to get on a hand-car, and run it to a certain switch and remove it from the railroad in order to get it out of the way of an approaching train; that, to properly control...
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