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
 
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Page 562

8 S.W. 562 (Mo. 1888)

95 Mo. 368

Harty

v.

St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

June 4, 1888

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

Reversed and remanded.

Bennett Pike and H. G. Herbel for appellant.

(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.

J. W. Collins and A. R. Taylor for respondent.

(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.

OPINION

[95 Mo. 369] Norton, C. J.

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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