81 S.W. 487 (Mo.App. 1904), Studenroth v. Hammond Packing Company

Citation:81 S.W. 487, 106 Mo.App. 480
Opinion Judge:BROADDUS, J.
Attorney:Johnson, Rusk & Stringfellow for defendant. Charles F. Strop and Motter & Shultz for respondent.
Case Date:April 25, 1904
Court:Court of Appeals of Missouri

Page 487

81 S.W. 487 (Mo.App. 1904)

106 Mo.App. 480




Court of Appeals of Missouri, Kansas City

April 25, 1904

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

Cause reversed and remanded.

Johnson, Rusk & Stringfellow for defendant.

(1) The demurrer to the evidence should have been given. If the complaining servant reports the defect and receives a promise to repair and relies on it, his assumption of the risk is suspended pending this reasonably requisite time. In order that the rule just stated shall apply it is necessary that the promise made by the master should have been the cause which induced the servant to continue in the employment. If for any other reason the servant continues in the employment, the master is not liable for the injuries received. 20 Am. & Eng. Ency. of Law, 128 and cases cited in note 1; Showalter v. Fairbanks, Morse & Co., 88 Wis. 376. Rothenberger v. Mill Co., 57 Minn. 461; Meyer v. Mfg. Co., 67 Mo.App. 389; Flynn v. Railway, 78 Mo. 195; Stephens v. Railroad, 96 Mo. 207; Thorpe v. Railway, 89 Mo. 650; Lewis v. Railroad, 26 N.E. 431. (2) And there is the further requirement that the servant must during the time allowed by the law to the master to make the repair, exercise such care as is reasonable under the circumstances; and this degree of care must be increased to correspond to the added danger due to the defect. Railroad v. Watson, 114 Ind. 20; Railroad v. Brentford, 79 Tex. 619; Miller v. Min. Co., 18 Utah 358; Bentley on Master & Servant, sec. 3074. (3) Where the danger becomes so great that no prudent man would willingly incur it, there being no commensurate degree of care, the servant can not continue in the peril and recover. This is usually a question for the jury, but this question was not submitted to the jury in this case, so that this rule furnishes no reason for submitting this case to the jury. Price v. Railroad, 77 Mo. 508; Porter v. Railroad, 71 Mo. 66; Kleine v. Freunds & Co., 91 Mo.App. 102; Berning v. Medart, 56 Mo.App. 443; Devitt v. Railway, 50 Mo. 302; Marshall v. Hay Press Co., 69 Mo.App. 256; Watson v. Coal Co., 52 Mo.App. 366; Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 541; Roberts v. Telephone Co., 166 Mo. 370; Beach on Con. Neg. (2 Ed.), sec. 359. (3) The physical facts are so palpable and conclusive that he will not be heard to gainsay them. Payne v. Railway, 136 Mo. 585; Gannon v. Gas Co., 145 Mo. 547; Lamb v. Railway, 147 Mo. 201; Graney v. Railroad, 157 Mo. 679; Kelsey v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 566; Lane v. Railroad, 132 Mo. 4; Huggart v. Railroad, 134 Mo. 680; Nugent v. Milling Co., 129 Mo. 405; 20 Am. and Eng. Ency. of Law, 120 and cases cited; Bailey on Master & Servant, sec. 3115.

Charles F. Strop and Motter & Shultz for respondent.

The objections of the defendant made in this court are not as to form of the instructions given or refused, but are to the effect that a demurrer to the evidence should have been given. Plaintiff was entitled to have his case submitted to the jury upon...

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