81 S.W. 1176 (Mo.App. 1904), Buckalew v. Quincy, Omaha & Kansas City R. Co.

Citation:81 S.W. 1176, 107 Mo.App. 575
Opinion Judge:SMITH, P. J.
Party Name:ALFRED BUCKALEW, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
Attorney:J. G. Trimble and Hall & Hall for appellant. Platt Hubbell and George Hubbell for respondent.
Case Date:June 20, 1904
Court:Court of Appeals of Missouri
 
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Page 1176

81 S.W. 1176 (Mo.App. 1904)

107 Mo.App. 575

ALFRED BUCKALEW, Respondent,

v.

QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 20, 1904

Appeal from Grundy Circuit Court.--Hon. P. C. Stepp, Judge.

Judgment affirmed.

J. G. Trimble and Hall & Hall for appellant.

(1) The trial court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence. There was no evidence that the section foreman Lemley told plaintiff where to take hold of the switch rail, if he told him at all. The switch rail was fifteen feet long, the foreman was in plain, open view, striking with the spike maul and plaintiff, with his eyes open, came up while Lemley's back was turned and voluntarily placed himself in reach of the maul. Hurst v. Railway, 163 Mo. 322; Graney v. Railway, 157 Mo. 679; McFadin v. Catron, 138 Mo. 213; Bradley v. Railway, 138 Mo. 302; Hewitt v. Steel, 136 Mo. 334; Holloran v. Foundry, 133 Mo. 470; Steinhauser v. Spraul, 127 Mo. 562; Wilson v. Albert, 89 Mo. 544; Zentz v. Chappell, 77 S.W. (K. C. App.) 86; Gettys v. Transit Co., 78 S.W. (St. L. App.) 82; Fugler v. Bothe, 117 Mo. 493; Marshall v. Hay Press Co., 69 Mo.App. 256; Berning v. Medart, 56 Mo.App. 443; Harff v. Green, 168 Mo. 308; Doerr v. Brewing Assn., 75 S.W. (Mo. Sup.) 600; Patton v. Railway, 179 U.S. 658, 45 Law. Ed. 361. (2) If an employee has two ways in which the required service may be performed, one of which is safe and the other unsafe, he can not recover for an injury received in performing the duty in the unsafe way, he being responsible for the choice he makes. Hurst v. Railroad, 163 Mo. 309; Moore v. Railroad, 146 Mo. 572; Hulett v. Railroad, 67 Mo. 239; Beal v. Railroad, 8 Am. Neg. (Kan.) 395; Railroad v. George, 94 Ala. 200; Quirouet v. Railroad, 8 Am. Neg. (Ga.) 183; Patton v. Railroad, 179 U.S. 658, 45 Law Ed. 361. (3) A servant assumes all the risks incident to the buisness in which he engages and the duties he engages to perform and also all such risks as shall become apparent to him by ordinary observation, or are readily discernible by a person of his age and capacity by the exercise of ordinary care; or where his means of knowledge are equally as great as those of his employer, or if he discovers the unusual risks and makes no complaint. Alcorn v. Railroad, 108 Mo. 97; Jackson v. Railroad, 104 Mo. 448; O'Hare v. Railroad, 95 Mo. 662; Porter v. Railroad, 71 Mo. 66; Thomas v. Railroad, 109 Mo. 187; Holloran v. Foundry, 133 Mo. 470; Fugler v. Bothe, 117 Mo. 493; Steinhauser v. Spraul, 127 Mo. 567; Epperson v. Cable Co., 155 Mo. 346; Watson v. Coal Co., 52 Mo.App. 366; Moore v. Wire Co., 55 Mo.App. 491; Berning v. Medart, 56 Mo.App. 443; Claybaugh v. Railway, 56 Mo.App. 630; Marshall v. Hay Press Co., 69 Mo.App. 256; Kleine v. Shoe Co., 91 Mo.App. 102. (4) The trial court erred in admitting the expert testimony of the witnesses Thrush, McClintock and Chase as to the proper method of putting on the angle-bar; this was work that required no mechanical skill or knowledge and the jury was just as capable of determining whether the manner in which the work was being done was dangerous, as were these witnesses. Grace v. Railroad, 156 Mo. 306; Hurst v. Railroad, 163 Mo. 320; Lee v. Knapp, 155 Mo. 641; Goble v. Kansas City, 148 Mo. 477; Benjamin v. Railroad, 133 Mo. 288; Edwards v. Paving Co., 92 Mo.App. 226; Graney v. Railroad, 157 Mo. 680; Koenig v. Railway, 173 Mo. 720. (5) The trial court erred in sustaining the objections to and excluding the impeaching evidence offered by defendant to prove the general reputation of the witness R. G. Davenport for honesty, integrity and fair dealing in the community in which he resided. State v. Shields, 13 Mo. 236; State v. Hamilton, 55 Mo. 523; State v. Breedon, 58 Mo. 507; State v. Miller, 71 Mo. 590; State v. Grant, 79 Mo. 133; State v. Taylor, 98 Mo. 245; State v. Raven, 115 Mo. 422; Kingman v. Showley, 61 Mo.App. 57; Grocer Co. v. Tagart, 78 Mo.App. 169; Sitton v. Grand Lodge, 84 Mo.App. 208. (6) The trial court erred in refusing to give appellant's instruction 7 as offered and in changing the same and giving it as so changed. Rogers on Expert Testimony (1 Ed.), sec. 42, p. 65; Fullerton v. Fordyce, 144 Mo. 531; Haight v. Vallet, 89 Cal. 245, 23 Am. St. 465; Clark v. State, 12 Ohio 483, 40 Am. Dec. 481; Rutherford v. Morris, 77 Ill. 404; Darring v. Railroad, 52 Conn. 285; Hays v. Wells, 34 Md. 513; Purifier Co. v. Cheatham, 4 Dill. 448; Benjamin v. Railway, 133 Mo. 289. (7) The trial court erred in giving plaintiff's instruction 3. Zumault v. Railroad, 175 Mo. 311; Sharp v. Railway, 161 Mo. 235; Loring v. Railroad, 128 Mo. 349; Tanner v. Railroad, 161 Mo. 497. (8) The trial court erred in giving plaintiff's instruction 4. Skipton v. Railway, 82 Mo.App. 143; Malory v. Railway, 84 Mo. 270; Candee v. Railway, 130 Mo. 152. (9) The trial court erred in giving plaintiff's instruction 1 and in refusing to give defendant's instruction 2, for there was no evidence that there was any failure on the part of the defendant to furnish necessary tools and appliances with which to work, and the jury should have been so instructed. Gutridge v. Railroad, 94 Mo. 468; Marr v. Bunker, 92 Mo.App. 661; McAtee v. Valandingham, 75 Mo.App. 45; Bergeman v. Railroad, 104 Mo. 90; Adolff v. Baking Co., 73 S.W. 325; Railroad v. Railroad, 118 Mo. 625; McCarty v. Fagan, 42 Mo.App. 626; Lyons v. Carter, 84 Mo.App. 488; Thompson v. Railroad, 93 Mo.App. 554; Ryan v. Kelly, 9 Mo.App. 592; Fairgrieve v. Moberly, 29 Mo.App. 141; Graham v. Gross, 50 Mo.App. 380; Culberson v. Railroad, 50 Mo.App. 556; McKeon v. Railroad, 42 Mo. 79; Evans v. Railroad, 106 Mo. 594. (10) The court erred in permitting the jury to take with them to their jury room the list of legal authorities or references attached to plaintiff's instructions. Heller v. Publishing Co., 153 Mo. 205; Clothing Co. v. Dry Goods Co., 156 Mo. 407; Harrison v. Hance, 37 Mo. 185; Clay v. Railway, 17 Mo.App. 629; Moore v. Wire Co., 55 Mo.App. 497; Flynn v. Bridge Co., 42 Mo.App. 536; Breen v. Cooperage Co., 50 Mo.App. 202; Adolff v. Baking Co., 73 S.W. (St. L. App.) 325; Berning v. Medart, 56 Mo.App. 443; Watson v. Coal Co., 52 Mo.App. 366; Porter v. Railroad, 71 Mo. 66; Condon v. Railroad, 78 Mo. 574; Epperson v. Cable Co., 155 Mo. 372; Lamson v. Axe and Tool Co., 177 Mass. 144, 83 Am. St. 267, 58 N.E. 585.

Platt Hubbell and George Hubbell for respondent.

(1) Defendant's insistence, with respect to matters of fact, have been decided against it by the jury, and that decision is conclusive. Weldon v. Railroad, 93 Mo.App. 673; James v. Life Assn., 148 Mo. 16; Ballard v. Railroad, 51 Mo.App. 457; Grace v. Railroad, 156 Mo. 301; O'Hare v. Railroad, 95 Mo. 667; Butts v. Bank, 99 Mo.App. 173. (2) The testimony of the mechanical experts was competent. 12 Am. & Eng. Ency. 423, 424, 425, Abb. T. B., 511, 515; Bradford v. Railroad, 64 Mo.App. 483; Helfenstein v. Medart, 136 Mo. 614; 12 Am. Eng. Ency. 435; Monahan v. Coal Co., 58 Mo.App. l. c. 74; Cooke v. Railroad, 57 Mo.App. 479; Hartman v. Muehlbach, 64 Mo.App. 581; Hamilton v. Mining Co., 108 Mo. 371. (3) Lemley negligently ordered Buckalew into a dangerous place to work, and, Lemley negligently struck Buckalew. Welden v. Railroad, 93 Mo.App. 674; Stephens v. Railroad, 96 Mo. 211; Russ v. Railroad, 112 Mo. 45; R. S. 1899, sec. 2873; Sinberg v. Falk Co., 98 Mo.App. 555; Schroeder v. Railroad, 108 Mo. 328; Rayburn v. Railroad, 74 Iowa 637; Boyle v. Railroad, 2 Am. & Eng. Railroad Cases 234; Halliburton v. Railroad, 58 Mo.App. 27; Monahan v. Clay & Coal Co., 58 Mo.App. 68; Hutson v. Railroad, 50 Mo.App. 300; Herriman v. Railroad, 27 Mo.App. 435; Eberly v. Railroad, 96 Mo.App. 361; Maxwell v. Railroad, 85 Mo. 99. (4) Contributory negligence and assumption of risk were questions of fact for the jury. As shown by the original bill of exceptions, 104 Mo. l. c. 120, is cited instead of 106 Mo. l. c. 120, at the bottom of plaintiff's sixth instruction. Hamman v. Coal & Coke Co., 156 Mo. 244. (5) The trial court committed no prejudicial error in excluding impeaching evidence offered by defendant. Roe v. Bank, 167 Mo. 421; Barbour v. McKee, 7 Mo.App. 586; Sharp v. Railroad, 114 Mo. 101; State v. Murphy, 118 Mo. 7; Erickson v. Railroad, 171 Mo. 666; State v. Soper, 148 Mo. 235; Ashley v. Green, 38 Mo.App. 290; Fullerton v. Fordyce, 144 Mo. 526; Weller v. Railroad, 164 Mo. 207. (6) The trial court committed no error in giving and refusing instructions. Hayden v. Parsons, 70 Mo.App. 493; Herriman v. Railroad, 27 Mo.App. 445; Meade v. Railroad, 68 Mo.App. 102; Tate v. Railroad, 64 Mo. 159.

OPINION

[107 Mo.App. 581] SMITH, P. J.

Action to recover damages for personal injuries. The negligence upon which plaintiff relies for a recovery is specified

Page 1177

in the petition in this way, i. e., that while the plaintiff, a common laborer, was at work for defendant under the control of its section boss, he was ordered by said boss to stoop down and take hold of the steel rails near a switch point and hold them with his hands in and about helping the said boss to adjust an angle-bar, which said angle-bar was in a close proximity to the point and place at which said boss ordered plaintiff to take hold of said rails, and which said angle-bar the said boss was then and there violently and rapidly striking with a heavy maul; that for the performance of this work, the defendant, then and there, carelessly and negligently failed to furnish the plaintiff and its other employees with reasonably safe and suitable tools and appliances for the performance of said task; that plaintiff obeyed said order and was thereby placed in an unsafe and dangerous place to work; that while plaintiff was in a stooping position, holding said rails as ordered by said boss, the plaintiff was, without fault or negligence on his part and by reason of...

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