9 S.W. 589 (Mo. 1888), Stephens v. Hannibal & St. Joseph Railroad Co.

Citation:9 S.W. 589, 96 Mo. 207
Opinion Judge:Black, J.
Party Name:Stephens v. The Hannibal & St. Joseph Railroad Company, Appellant
Attorney:Strong & Mosman and Huston & Parrish for appellant. Henry Smith for respondent.
Judge Panel:Black, J. Ray, J., absent.
Case Date:November 12, 1888
Court:Supreme Court of Missouri
 
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Page 589

9 S.W. 589 (Mo. 1888)

96 Mo. 207

Stephens

v.

The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri

November 12, 1888

Appeal from Clay Circuit Court. -- Hon. G. W. Dunn, Judge.

Reversed and remanded.

Strong & Mosman and Huston & Parrish for appellant.

(1) The demurrer to the evidence should have been sustained. The risk to plaintiff was an obvious one. Keegan v. Cavanaugh, 62 Mo. 232; McDermott v. Railroad, 87 Mo. 285; Flynn v. Railroad, 78 Mo. 195; Porter v. Railroad, 71 Mo. 67; Dowling v. Allen, 88 Mo. 293. (2) All the testimony shows plaintiff was guilty of such negligence as to preclude his recovery. Bell v. Railroad, 72 Mo. 59; S. C. 86 Mo. 600; McDermott v. Railroad, 87 Mo. 285; Dale v. Railroad, 63 Mo. 455. (3) The proof does not sustain the cause of action charged in the petition. (4) The plaintiff was not injured in the course of his employment in obedience to the master's order, but in attempting to do something which he was not ordered to do, and which he was doing on his own judgment and by means chosen by himself. Sullivan v. India Co., 113 Mass. 396; Felch v. Allen, 98 Mass. 572. (5) The court erred in giving the first instruction on behalf of the respondent. The servant is not held to obey every order of the master. The limit fixed by law to required obedience is, was obedience to the order so perceptibly, obviously dangerous that a man (not the plaintiff) of ordinary prudence, caution and firmness would decline obedience. The standard is the action of a man of ordinary prudence and caution. McDermott v. Railroad, 87 Mo. 285; Keegan v. Cavanaugh, 62 Mo. 232; Flynn v. Railroad, 78 Mo. 195. (6) The court erred in refusing to give defendant's fourth instruction. Porter v. Railroad, 71 Mo. 67; Keegan v. Cavanagh, 62 Mo. 232; Dale v. Railroad, 63 Mo. 455; Wood on M. & S. sec. 328. (7) The court erred in permitting plaintiff to prove other injuries than those charged in the petition.

Henry Smith for respondent.

(1) The case was retried in conformity to the opinion delivered when the case was here before. 86 Mo. 229. (2) There was no contributory negligence on plaintiff's part to preclude his recovery. It is said by many courts that "the fact that an employe is directed by his superior in charge to do an act at a time and under such circumstances as that a person would reasonably apprehend danger, would not justify his disobedience of such orders, and obedience is not negligence." Dowling v. Allen & Co., 74 Mo. 13; Keegan v. Kavanaugh, 62 Mo. 230; Railroad v. Fost, 17 Wall. 553, 557; Railroad v. Bayfield, 37 Mich. 205; Lalar v. Railroad, 52 Ill. 401; Railroad v. Collins, 2 Duv. 114; Frannsen v. Railroad, 36 Iowa 372; Patterson v. Railroad, 76 Pa. St. 389; LeClair v. Railroad, 20 Minn. 9; Miller v. Railroad, 12 F. 600; Miller v. Railroad, 17 F. 67; Smith v. Railroad, 61 Mo. 591; Cottrel v. Railroad, 47 Wis. 634.

Black, J. Ray, J., absent.

OPINION

[96 Mo. 209] Black, J.

This case has been here before and is reported in 86 Mo. 221. It is now freed from any question of negligence on the part of those in charge of the train, and stands on the alleged negligence of Rice and the alleged contributory negligence of the plaintiff. Now, as on the former appeal, it appears that plaintiff and five others, under John Rice as their foreman, were engaged in raising a part of defendant's track. For that purpose rocks were distributed along the track by the construction train. Plaintiff and the other laborers [96 Mo. 210] put them on the track, broke them with sledge-hammers, and forced the pieces under the ties with tamping-bars. The evidence...

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