82 Mo. 430 (Mo. 1884), Siela v. Hannibal & St. J. R. Co.

Citation:82 Mo. 430
Opinion Judge:NORTON, J.
Party Name:SIELA v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
Attorney:George W. Easley for appellant. James W. Boyd for respondent.
Court:Supreme Court of Missouri
 
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Page 430

82 Mo. 430 (Mo. 1884)

SIELA

v.

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884

Appeal from Buchanan Circuit Court. --HON. W. H. SHERMAN, Judge.

AFFIRMED.

George W. Easley for appellant.

The demurrer to plaintiff's evidence should have been sustained. The master is not chargeable for defects in machinery causing injury to the servant, unless negligence or fault can be imputed to the master. Wood on Master and Servant, § § 344, 382; Roberts & Wallace's Liability of Employers, (2 Ed.) 113, 169; Scott v. London Dock Co., 34 L. J. Ex. 220; Schultz v. Railroad Co., 64 Mo. 32. The first and second instructions given for plaintiff submit issues not embraced in the pleadings, and upon which no evidence was offered. Waldhier v. Railroad Co., 71 Mo. 514; Price v. Railroad Co., 72 Mo. 414; Edens v. Railroad Co., 72 Mo. 212; Bullene v. Smith, 73 Mo. 151; Ely v. Railroad Co. 77 Mo. 34. In all the instructions given by the court, both for plaintiff and of its own motion, the question, what constitutes negligence and care, was left, both law and fact, to the jury, which was error. Goodwin v. Railroad Co., 75 Mo. 75 ; Yarnell v. Railroad Co., 75 Mo. 583; Zimmerman v. Railroad Co., 71 Mo. 491. The opinions of plaintiff's witnesses that the handle was made of improper wood, " would have no appreciable weight in the scale of evidence" if the witness Groff applied the tests he testified he did. Warner v. Railroad Co., 39 N.Y. 468; 1 Redfield R'y Cases, 403; Pierce on R. R., p. 371; Hough v. Railroad Co., 100 U.S. 218.

James W. Boyd for respondent.

The demurrer to the evidence was properly overruled. If the handle was defective at the time of its construction, and so continued when put to use, it was not necessary to show further notice or knowledge on part of defendant. Greenleaf v. Railroad Co., 29 Ia. 14. It was the duty of defendant to furnish suitable machinery. Long v. Railroad Co., 65 Mo. 224; Lewis v. Railroad Co., 59 Mo. 495; Porter v. Railroad Co., 71 Mo. 66; Gibson v. Railroad Co., 46 Mo. 163. The instructions do not involve any questions not embraced in the issues. Appellant's motion for a new trial does not refer to the instructions given by the court, on its own motion; hence the fourth specification in appellant's assignment of errors is not relevant. " The conclusion reached by the jury is manifestly right, and a different result could not have been reached by them, without manifest injustice, therefore, the verdict ought not to be disturbed." Noble v. Blount, 77 Mo. 235; see p. 239; Blewett v. Railroad Co., 72 Mo. 583. On the entire case, it is apparent, that the rulings of the trial court were very favorable to appellant, and that appellant has no reason to complain of the result.

NORTON, J.

This action was commenced in the circuit court of Buchanan county to recover damages for personal injuries received by plaintiff in consequence of being thrown from, and run over by a hand car, by reason of the breaking of a handle thereof on which plaintiff was working as the servant of defendant.

The petition alleges among other things, the following as the cause of action:

" That prior to the time plaintiff was injured, the defendant carelessly and negligently furnished to plaintiff for his use in and about said work upon defendant's track, a hand car which was unsafe and dangerous and unfit for use; that said unsafe and dangerous condition of said hand car were known to defendant prior to the time when it was furnished to plaintiff, and until plaintiff was injured * * but were never known to plaintiff until he was injured * * that on, etc., plaintiff was, etc., when the lever and handle of said car, in consequence of said negligent and careless construction, and unsafe and dangerous condition, broke, and by breaking threw plaintiff," etc. The answer of defendant was a general denial.

Plaintiff on the trial obtained judgment for $1,500, from which the defendant has appealed, and the first error assigned and relied upon is the action of the court in refusing to give an instruction, at the close of plaintiff's evidence, that he was not entitled to recover. Plaintiff introduced as a witness the section foreman, who on the day of the accident, with four hands, the plaintiff being one of them, were operating a hand car on defendant's road. He testified that: " We were going west over the railroad of defendant on a hand car; we had no load on the hand car; while so employed the handle of the car broke, and plaintiff...

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