Johnston v. Missouri Pac. Ry. Co.

• Decision Date: 26 November 1888
• Citation: 9 S.W. 790,96 Mo. 340
• Parties: JOHNSTON v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

9 S.W. 790

96 Mo. 340

JOHNSTON v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

November 26, 1888.

1. NEGLIGENCE — PLEADING — COMPLAINT.

In an action by a servant against his master for personal injuries caused by a defective hammer furnished by the latter, an allegation that defendant negligently furnished plaintiff the hammer is a sufficient averment that defendant knew, or might by the exercise of ordinary care have known, of the hammer's condition.¹

2. SAME — EVIDENCE.

In such an action, where the petition alleges that the hammer in question had been repaired at defendant's own shops, and that it was owing to its imperfect and brittle condition and flaws that plaintiff was injured, testimony of blacksmiths that the hammer had not been repaired with reasonable skill is admissible.

3. PLEADING — COMPLAINT — CLERICAL ERROR.

In such an action an allegation that "the said defendant, wholly neglecting and disregarding its duty to this defendant," does not render the petition insufficient, when the objection is not raised until the trial; the use of the word "defendant" the second time instead of "plaintiff" being clearly a mere clerical error.

4. MASTER AND SERVANT — NEGLIGENCE OF MASTER — DEFECTIVE APPLIANCES.

In such an action, where the evidence shows that plaintiff was employed by defendant as a section foreman on its road; that it was his duty to keep the track in repair; that he was obliged to use a hammer in his work; that the hammer in question was furnished him by defendant, having been just repaired at its repair-shops; that it appeared to be in good condition; that in using it in his employment a piece flew off from the face and struck him in the eye; and that the breaking of the hammer was caused by flaws which were not visible before the accident, and which would not have existed had the hammer been properly repaired, — a demurrer to the evidence is properly overruled.

5. TRIAL — INSTRUCTIONS.

In such an action the use of the terms "reasonable care and diligence" in charging the jury, without giving any definition of the terms, is not reversible error, where no instruction embodying such a definition has been asked.

6. DAMAGES — EXCESSIVE.

In such an action a verdict for $5,000 damages is not excessive, where it appears that plaintiff is 35 years old, that the accident entirely destroyed his right eye, and also affected the other, and that he could not do after the accident more than half the work he could do before.²

Appeal from circuit court, Morgan county; E. L. EDWARDS, Judge.

Action by James W. Johnston against the Missouri Pacific Railway Company for personal injuries. Plaintiff obtained judgment. Defendant appeals.

T. J. Portis and Smith, Silver & Brown, for appellant. J. A. Spurlock, for respondent.

NORTON, C. J.

This case is here on defendant's appeal from a judgment recovered by plaintiff in the Morgan county circuit court for $5,000 damages for personal injury; and as exception was taken to the action of the trial court in overruling defendant's objection to the introduction of any evidence, because the plaintiff's petition did not state facts sufficient to constitute a cause of action, it necessitates an insertion of so much of the petition as bears upon the question involved. Omitting the formal parts of the petition, it is as follows: "That on the 13th day of July, 1885, the said defendant was operating a branch railroad from Booneville, Mo., to Versailles, and this plaintiff was employed by it as foreman or section boss on a section of said road leading from Versailles, Mo., to Aikinsville, Mo., a distance of about nine miles, and it was part of his duty, as such servant of defendant, to help drive railroad spikes, and cut iron rails, and keep defendant's track in good, safe condition, and it was the duty of defendant to furnish him good and reasonably safe and sufficient tools for that purpose; but that the said defendant, wholly neglecting and disregarding its duty to this defendant in that behalf, did furnish him a large hammer weighing about eight pounds, for the purpose of driving railroad spikes, and cutting iron side-rails by striking other sharper instruments, which said hammer was newly laid and repaired at the shops of the defendant by its own employes, and looked to an unskilled man to be sound and safe to work with, when in truth it was not safe and sound; and on the 13th day of July, 1885, while this plaintiff and his assistants were cutting an iron rail and using the said hammer so negligently furnished him by said defendant, and while acting under its order, and in the scope of his employment, a piece of said hammer flew off and struck this plaintiff in the right eye, owing to the imperfect and brittle condition and flaws in said hammer so furnished him by the defendant, and which imperfections and unsafe condition of the said hammer could not be discovered with due caution and care by an unskilled servant; by means whereof his said right eye was knocked out, and the eye-ball and sight totally destroyed, and that he was thereby damaged in the sum of $10,000."

The specific objection urged to the above petition is that it does not allege that defendant either knew, or might by the exercise of ordinary care have known, that said hammer was not reasonably safe for the purposes for which it was to be used. In the case of Crane v. Railway Co., 87 Mo. 588, it is held that, in an action by a servant against his master for negligence in furnishing improper or unsafe appliances for the servant's use in his work, the petition must allege that the master either knew, or might by the exercise of ordinary care have known, of the dangerous and defective construction of the appliance, or it must contain an equivalent averment; and that an allegation that...