9 S.W. 790 (Mo. 1888), Johnston v. Missouri Pacific Railway Co.

Citation:9 S.W. 790, 96 Mo. 340
Opinion Judge:Norton, C. J.
Party Name:Johnson v. The Missouri Pacific Railway Company, Appellant
Attorney:Thos. J. Portis and Smith, Silver & Brown for appellant. James A. Spurlock for respondent.
Judge Panel:Norton, C. J. Brace and Black, JJ., concurring; Ray, J., absent.
Case Date:November 26, 1888
Court:Supreme Court of Missouri

Page 790

9 S.W. 790 (Mo. 1888)

96 Mo. 340



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

November 26, 1888

Appeal from Morgan Circuit Court. -- Hon. E. L. Edwards, Judge.


Thos. J. Portis and Smith, Silver & Brown for appellant.

(1) The petition does not affirmatively allege that the injury complained of was occasioned by a hidden defect in the hammer, which was known to defendant, or could have been discovered by the exercise of reasonable care. Current v. Railroad, 86 Mo. 62; McDermott v. Railroad, 30 Mo. 115; Gibson v. Railroad, 46 Mo. 163; Lewis v. Railroad, 59 Mo. 495; Cummings v. Collins, 61 Mo. 520; Elliott v. Railroad, 67 Mo. 272; Pierce on Railways, 370-373; Wood on Master and Servant, sec. 348. And the evidence fails to show that the alleged defect could have been discovered by inspection. (2) The petition does not state a cause of action for negligently repairing the hammer; the evidence showing this, if anything, to be the ground of recovery. Buffington v. Railroad, 64 Mo. 246; Current v. Railroad, 86 Mo. 62; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Benson v. Railroad, 78 Mo. 504. (3) The evidence to show the hammer was defectively repaired was inadmissible. Current v. Railroad, supra. So also was the opinion of the witnesses as to the temper and workmanship of the hammer, and that it had not been properly repaired. Gutridge v. Railroad, 94 Mo. 468. (4) The instruction given for plaintiff is erroneous in directing a recovery on the theory of negligence in repairing the hammer. Current v. Railroad, supra; Waddingham v. Hulett, 92 Mo. 528; Young v. Ridenbaugh, 69 Mo. 574. (5) The words "reasonable care and diligence" used in the instruction should have been defined. Wiser v. Chesley, 53 Mo. 547; Mueller v. Ins. Co., 45 Mo. 84; Buel v. Transfer Co., 45 Mo. 562; Zimmerman v. Railroad, 71 Mo. 476. (6) The damages are excessive. Railroad v. Peavy, 34 Kan. 487; Ryder v. Mayor, 50 N.Y. 220; Marshall v. Railroad, 78 Mo. 616; Railroad v. West, 87 Ill. 94; Railroad v. Payzant, 87 Ill. 125; Lombard v. Railroad, 47 Iowa 494; Railroad v. Hause, 1 Wy. 27; Sherman v. Stage Co., 24 Iowa 515; Railroad v. Finlayson, 18 A. & E. Ry. Cas. 68; Railroad v. Ware, 1 S.W. 494. (7) The petition is meaningless and senseless in stating that the defendant, disregarding its duty to the defendant, did furnish him said hammer. etc. It therefore fails to state a cause of action, and the objections made to it on the trial should have been sustained. Stegman v. Berryhill, 72 Mo. 307.

James A. Spurlock for respondent.

(1) A master is bound to furnish his servants with machinery, instruments and appliances which are reasonably sound and safe; the servant is not bound to have them inspected, and their soundness and strength tested; and if the master furnishes unsafe and unsound instruments, etc., when a proper inspection would have disclosed their unsafe or dangerous character, and injury results, he is liable. Seila v. Railroad, 82 Mo. 430; Covey v. Railroad, 86 Mo. 635; Hickman v. Railroad, 22 Mo.App. 344; Porter v. Railroad, 60 Mo. 160; S. C., 71 Mo. 66; Whalen v. Church, 62 Mo. 326. (2) A servant does not assume any risks as to machinery or appliances, only when the defect is so patent as to attract his notice and warn him of danger. Dale v. Railroad, 63 Mo. 445; Stockman v. Railroad, 15 Mo.App. 583. See also Wood on Master & Servant [2 Ed.] secs. 357, 358, 359. (3) The question whether the hammer was...

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