Mathis v. Kansas City Stock Yards Company
Citation | 84 S.W. 66,185 Mo. 434 |
Parties | MATHIS v. KANSAS CITY STOCK YARDS COMPANY, Appellant |
Decision Date | 24 December 1904 |
Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.
Reversed.
Pratt Dana & Black for appellant.
(1) Plaintiff failed to make out a case of injury due to actionable negligence on the part of defendant, and therefore its requests, made at the close of his case, and at the close of all the testimony, that a verdict be directed in its favor, should have been granted. (a) Even if the things alleged constituted defects in the plank, yet they were patent to any observer, and the plaintiff must have known of them, and was chargeable with such knowledge if he did not actually know it. Wood's Master and Serv., secs. 382, 419; 2 Thompson on Neg., sec. 48; Railroad v Wagner, 33 Kan. 666; Breen v. Coop. Co., 50 Mo.App. 202; Covey v. Railroad, 86 Mo. 635; O'Malley v. Railroad, 113 Mo. 319; Murray v Railroad, 101 Mo. 236. (b) Plaintiff must have proved affirmatively that defendant's furnishing the plank or allowing its use in the way in which plaintiff used it was a failure on its part to discharge some duty which it owed him, and that such failure was the proximate cause of his injury. Gurley v. Railroad, 104 Mo. 223; Roddy v. Railroad, Id. 244; Patterson's Ry. Accdt. Law, p. 7; Harlan v. Railroad, 65 Mo. 22; Hudson v. Railroad, 101 Mo. 13; Schmitt v. Railroad, 160 Mo. 43; Webb's Pollock on Torts, p. 545; Wood's Master and Servant, sec. 408. (c) Defendant's duty did not require it to furnish any particular kind of appliances, nor the safest nor the most suitable. Grattis v. Railroad, 153 Mo. 404; Friel v. Railroad, 115 Mo. 503; Bohn v. Railroad, 106 Mo. 429; Cothron v. Packing Co. (Mo. App.), 73 S.W. 279; Bradley v. Railroad, 138 Mo. 302; Brown v. Lumber Co., 65 Mo.App. 162. (d) The fact that plaintiff fell and was hurt, or that the plank tipped and caused his fall (if it was a fact) did not overcome said presumption nor prove a failure by defendant in doing its duty to plaintiff. Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. 119. (e) Plaintiff assumed the risk of using the plank because if, as he claims, it was a defective or unsuitable appliance in the respects charged in his petition, yet those alleged defects were obvious to him, he did not complain of them, and there was no promise or assurance given by defendant with reference to them. Wood's Master and Serv., sec. 382; Roberts v. Tel. Co., 166 Mo. 370; Nugent v. Milling Co., 131 Mo. 245; Steinhauser v. Spraul, 127 Mo. 562; Beach on Cont. Neg. (2 Ed.), sec. 359; Junior v. Light Co., 127 Mo. 83; Bradley v. Railroad, 138 Mo. 302. (2) The release executed by plaintiff was a bar to any right of action he might have had, and for that reason defendant should have had a verdict in its favor. Hazard v. Griswald, 21 F. 178; Wood v. Gordon, 18 N.Y.S. 111; Wallace v. Railroad, 67 Ia. 547, 25 N.W. 772; Och v. Railroad, 130 Mo. 52; Nicol v. Young, 68 Mo.App. 453.
Frank P. Walsh and E. R. Morrison for respondent.
(1) (a) The evidence clearly shows that defendant was guilty of negligence in the respects charged in the petition and the demurrer to the evidence was properly overruled. Doyle v. Trust Co., 140 Mo. 1; Huhn v. Railroad, 92 Mo. 440; Pauck v. St. L. D. B. Co., 159 Mo. 467; Murphy v. Railroad, 115 Mo. 118; Settle v. Railroad, 127 Mo. 343; Wendler v. People's H. F. Co., 163 Mo. 527. (b) The master's duty is to exercise reasonable care to provide as safe a place to perform the service as the character of the work done will permit. Curtis v. McNair, 173 Mo. 270; Bradley v. Railroad, 138 Mo. 302; Mather v. Rillston, 156 U.S. 391; Blanton v. Dold, 109 Mo. 75. (2) Where it is shown that the master has negligently failed in the performance of a personal duty, the servant never assumes the risk of such negligence. 1 Bailey's Pers. Inj., sec. 469; Soeder v. Railroad, 100 Mo. 673; Devlin v. Railroad, 87 Mo. 545; Keegan v. Kavanaugh, 62 Mo. 232. (3) The evidence shows a wrongful and fraudulent procurement of the release by the agents of appellant, and same is null and void. Och v. Trust Co., 130 Mo. 50; Vautrain v. Railroad, 78 Mo. 44, affirming 8 Mo.App. 538; Goodson v. Nat. Mas. Assn., 91 Mo.App. 351. The payment of $ 70 was voluntarily made by appellant and delivered to plaintiff and under the law was a gift and hence no consideration for signing the release. Meyer v. Koehruny, 129 Mo. 25; Blatz v. Lester, 54 Mo.App. 285; Riley v. Kershaw, 52 Mo. 224; Cunningham v. Union Cas. & S. Co., 82 Mo.App. 612.
OPINION
In Banc
This cause was transferred to Court In Banc from Division No. 1 of this court. The opinion in Division No. 1, by the learned and esteemed judge, fairly states the facts in this cause, and with his permission the same will be adopted. It is as follows:
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