90 S.W. 753 (Mo.App. 1905), Brunke v. Missouri & Kansas Telephone Company

Citation:90 S.W. 753, 115 Mo.App. 36
Opinion Judge:JOHNSON, J.
Party Name:HENRY W. F. BRUNKE, by next friend, Respondent, v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellant
Attorney:Harkless, Crysler & Histed and Brown & Dolman for appellant. James W. Mytton and Charles C. Crow for respondent.
Case Date:December 04, 1905
Court:Court of Appeals of Missouri
 
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Page 753

90 S.W. 753 (Mo.App. 1905)

115 Mo.App. 36

HENRY W. F. BRUNKE, by next friend, Respondent,

v.

MISSOURI & KANSAS TELEPHONE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 4, 1905

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

AFFIRMED.

Judgment affirmed.

Harkless, Crysler & Histed and Brown & Dolman for appellant.

It is a well-settled principle that the plaintiff cannot be permitted to introduce evidence for the purpose of establishing negligence which is not pleaded or set up in its petition. Conway v. Railroad, 24 Mo.App. 235; Breeden v. Mining Co., 103 Mo.App. 176; Hicks v. Railroad, 68 Mo. 329; Haines v. Pearson, 100 Mo.App. 551; Brooks v. Blackwell, 76 Mo. 309.

James W. Mytton and Charles C. Crow for respondent.

(1) Respondent did not attempt to recover by reason of a departure from or failure of appellant to observe the usual and customary manner of doing the work but upon the sole ground that the manner of carrying on and performing the work was dangerous and negligent. The above is consistent with the ruling of the courts in every case cited by appellant. White v. Railroad, 84 Mo.App. 411, cases cited. (2) Any evidence that tends to prove the facts stated in the petition to be negligent is admissible. White case, supra. By a casual reading of each of the cases cited by appellant, it will be noticed that they are as nearly in point as Shelly's case or the Dred Scott decision would be.

OPINION

[115 Mo.App. 37] JOHNSON, J.

Plaintiff recovered judgment in the sum of fifteen hundred dollars on account of personal injuries sustained as the result of the negligence of defendant.

The pertinent facts shown by the evidence are as follows: In the afternoon of April 29, 1904, plaintiff, a boy then about eleven years of age residing with his parents in the city of St. Joseph, while on his way home from school had his attention attracted by some repairs which linemen, employed by defendant, were engaged in making near the intersection of Twenty-sixth and Olive streets, upon telephone wires strung overhead and carried [115 Mo.App. 38] on poles. The place was in a populous part of the city and the telephone line was in the street. Plaintiff asked and obtained permission from one of the workmen to take a piece of wire lying near the base of the pole that was the...

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