87 Mo. 588 (Mo. 1885), Crane v. Missouri Pac. Ry. Co.

Citation:87 Mo. 588
Opinion Judge:NORTON, J.
Party Name:CRANE v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Attorney:W. S. Shirk and T. G. Portis for appellant. W. W. Snoddy for respondent.
Court:Supreme Court of Missouri
 
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Page 588

87 Mo. 588 (Mo. 1885)

CRANE

v.

THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885

Appeal from Pettis Circuit Court. --HON. JNO. P. STROTHER, Judge.

AFFIRMED.

W. S. Shirk and T. G. Portis for appellant.

(1) Plaintiff's petition does not state facts sufficient to constitute a cause of action. Hulett v. Railroad Co., 67 Mo. 239; Mich. Central Railroad Co. v. Smithson, 45 Mich. 212; I., B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; Wood on Master and Servant, p. 754, sec. 382; Id., p. 791, sec. 414; Thompson on Neg., p. 982, sec. 11; Id., p. 1050, sec. 47; Whart. on Neg. (2 Ed.) sec. 243 a ; Toledo, etc., R. R. Co. v. Black, 88 Ill. 112; Baldwin v. Chicago, etc., R. R. Co., 50 Iowa 680; Railroad Co. v. Troesch, 68 Ill. 545; Wonder v. Railroad Co., 32 Md. 411; Sherman and Redf. on Neg., p. 115, sec. 87; Id., p. 128, sec. 99; McGinnis v. C. S. B. Co., 8 Am. and Eng. R. R. Cases, 135; Central R. R. Co. v. Kenny, 64 Ga. 100; Gibson v. P. R. R. Co., 46 Mo. 163; Waldhier v. H. & St. J. R. R. Co., 71 Mo. 514; Elliott v. St. L., I. M. & S. R. R. Co., 67 Mo. 272; Scott et al. v. Robards, 67 Mo. 289; Jones v. Tuller, 38 Mo. 366; Current v. Mo. Pac. R. R. Co., 86 Mo. 62. (2) The defendant's instruction offered at the close of plaintiff's case should have been given. ( a ) Because the petition does not state facts sufficient to constitute a cause of action, and is fatally defective. ( b ) Because the plaintiff's evidence failed to establish a cause of action against defendant. Authorities cited, supra. ( c ) Because plaintiff's evidence clearly shows that he was guilty of contributory negligence, which was the direct cause of his injury. Wood on Master and Servant, p. 746, sec. 372; Id., p. 754, sec. 382; Harlan v. St. L., K. C. & N. R. R. Co., 64 Mo. 480; Fleecher v. A. & P. R. R. Co., 64 Mo. 484; Powell v. Mo. Pac. R. R. Co., 76 Mo. 80, and authorities cited, supra. (3) The court erred in permitting the plaintiff's witnesses to testify, against the objections of defendant, as to changes made in the construction of the " Baldwin locomotive cars," use of same, etc., subsequent to the plaintiff's injury. (4) The court erred in giving plaintiff's instructions; they do not embody correct propositions of law, and if they did, are not authorized by the pleadings or justified by the evidence.

W. W. Snoddy for respondent.

(1) The petition is substantially good, and states a good cause of action at common law, as will be seen by the court upon an inspection. It does show that the respondent did not know the danger in the car described, and that the appellant did know, and could have known, by the exercise of reasonable diligence. The petition is certainly good after verdict that every fact was proven necessary to sustain it, although the same may not have been technically set forth in the petition. R. S., sec. 3882; Bowie v. Kansas City, 51 Mo. 454; Cowles v. Richmond, etc., R. R. Co., 12 Cent. Law Jour. 546. All the instructions in the cause show that the instructions and evidence were in harmony with the petition. The petition showed that an injury had been received by the respondent without fault or negligence on his part, on account of negligence on the part of the appellant. (2) The railroad company was bound to provide safe machinery and appliances for its employes. The company, according to the evidence, either knew, or should have known, of the dangerous...

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