87 S.W. 1007 (Mo. 1905), Sheperd v. St. Louis Transit Co.

Citation:87 S.W. 1007, 189 Mo. 362
Opinion Judge:FOX, J.
Party Name:SHEPERD v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Geo. W. Easley with Boyle, Priest and Lehmann for appellant. Ernest E. Wood for respondent.
Case Date:June 06, 1905
Court:Supreme Court of Missouri
 
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Page 1007

87 S.W. 1007 (Mo. 1905)

189 Mo. 362

SHEPERD

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 6, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Jno. A. Talty, Judge.

Affirmed.

Geo. W. Easley with Boyle, Priest and Lehmann for appellant.

While the Missouri doctrine on the subject of whether knowledge of the defect on the part of the employee bars recovery is "extraordinarily conflicting," still we can see nothing in conflict with the Missouri rulings. The second instruction defined the exact issues made by the pleadings, instructed that the burden of proof was upon plaintiff, directed that no presumption of negligence should be made, and that the questions submitted were not to be determined by mere speculation, conjecture or guessing, but "if upon a full and fair consideration of all the facts and circumstances in evidences" the jury found "that plaintiff knew of its condition, or might if he had used ordinary care for his own protection or that of the passengers carried on said car," or "that defendant did not know of its condition and could not have known of it by the exercise of reasonable care," etc., then the verdict was to be for the defendant. The clause of the instruction as above analyzed is clearly within the general rules of the American law governing the relation of master and servant. 1 Labat's M. & S., sec 297. And if that clause of the instruction is not strictly in line with the "extraordinarily conflicting" decisions of the Missouri courts (1 Labat's M. & S., sec. 301), yet the fifth instruction, read in connection therewith, makes the whole charge of the court in harmony with the Missouri rule. That instruction expressly declares that the knowledge or means of knowledge by the exercise of care "will not in itself prevent plaintiff from recovering, unless you further believe and find from the evidence that said alleged defective and unsafe step was so openly and obviously dangerous that a man of ordinary prudence would not have used it." These two instructions, when read, as they must be, in connection with each other, put before the jury the doctrine that has been designated "glaring danger," first announced in this State in Conroy v. Iron Works, 62 Mo. 39, and followed by other cases since and often departed from in many other cases. 1 Labat's M. & S., sec. 301.

Ernest E. Wood for respondent.

(1) There is a direct conflict in the instructions given by the court. Where the instructions are conflicting and misleading, the judgment must be reversed. Flynn v. Union Bridge Co., 42 Mo.App. 536; Breen v. Land & Lumber Co., 65 Mo.App. 162; Welch v. Railroad, 20 Mo.App. 480. (2) Instruction 2 is erroneous. Jones v. St. Louis Packet Co., 43 Mo. 398; Conroy v. Vulcan Iron Works, 62 Mo. 35; Thorpe v. Railroad, 89 Mo. 650; Steinhauser v. Spraul, 114 Mo. 551; Bender v. Railroad, 137 Mo. 241; Pauck v. Dressed Beef Co., 159 Mo. 468. (3) Instruction 5 states the direct opposite of instruction 2. Though one may be correct, the error is not cured, since no one can say which governed the jury. Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 613; Billups v. Daggs, 38 Mo.App. 369. (4) Instructions 2 and 3 are conflicting. Instruction 3 is erroneous on question of burden of proof of contributory negligence. (5) Instruction 4 is erroneous. Hitchcock v. Boughan, 36 Mo.App. 216; Cafferatta v. Cafferata, 23 Mo. 235; Slater v. Hollenschirt, 61 Mo. 302.

OPINION

[189 Mo. 364] FOX, J.

This cause comes to this court by appeal from an order of the trial court sustaining a motion for new trial.

The cause of action is thus stated in the petition: "Plaintiff, for his cause of action against the defendant, says:

"That the said defendant is a corporation, by virtue of the laws of the State of Missouri, and that, at all times herein mentioned, said defendant was, and now is, engaged in operating certain lines of street cars [189 Mo. 365] on the various streets and thoroughfares of the city of St. Louis, State of Missouri. That on the 15th day of January, 1902, this plaintiff was regularly in the employ of the said defendant corporation as a street car conductor.

"That, during the afternoon of the said 15th day of January, 1902, the defendant corporation, by its agents and servants, delivered to this plaintiff, for use in his said employment, a car owned by the said defendant corporation; that one of the steps on said car was worn with use and was in a broken and unsafe condition, and that the condition of said step was known to the defendant corporation, or by reasonable inspection could have been known to it. That on said lastnamed day, during the course of a run made by the plaintiff with the said defective car, this plaintiff had occasion, in pursuance of his duties in said employment, at or near the corner of Prairie avenue and Herbert street, to step from the ground on to the said defective step; that thereupon the said defective step gave way with him, throwing this plaintiff violently to the ground, and causing the wheels of the car to run over his left hand, crushing it and rendering it useless to the plaintiff, to his damage in the sum of seven thousand dollars.

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"That the said car furnished to this plaintiff by the said defendant...

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