93 S.W. 869 (Mo.App. 1906), Dunn v. Nicholson

Citation:93 S.W. 869, 117 Mo.App. 374
Opinion Judge:[117 Mo.App. 375] ELLISON, J.
Party Name:PATRICK DUNN, Respondent, v. FRANK NICHOLSON, Appellant
Attorney:McAntire & Scott for appellant. W. J. Owen and W. R. Robertson for respondent.
Case Date:March 05, 1906
Court:Court of Appeals of Missouri
 
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Page 869

93 S.W. 869 (Mo.App. 1906)

117 Mo.App. 374

PATRICK DUNN, Respondent,

v.

FRANK NICHOLSON, Appellant

Court of Appeals of Missouri, Kansas City

March 5, 1906

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

McAntire & Scott for appellant.

(1) Plaintiff's instructions numbered 1 and 2 are erroneous in that they, without qualification, tell the jury to find for the plaintiff if defendant had not furnished a reasonably safe appliance, when his duty is only to exercise ordinary care to do so. Knight v. Lead and Zinc Co., 91 Mo. 579; Bradley v. Railroad, 133 Mo. 307-308; Friel v. Railroad, 115 Mo. 503; Bohn v. Railroad, 106 Mo. 429. (2) Defendant's instruction numbered 3 covered the entire case and should have been given. (3) Defendant's instruction numbered 4 was based on plaintiff's theory of the case and if any instructions should have been given in the case, then defendant's instruction numbered 4 should have been one of them. Woerhide v. Car Co., 32 Mo.App. 371.

W. J. Owen and W. R. Robertson for respondent.

(1) The conditions and circumstances developed a case that imposed on the defendant the absolute duty of furnishing reasonably safe appliances, and the objection by defendant to plaintiff's instruction numbered 1, is not well taken; in fact, the instruction is broader in behalf of defendant than the law requires. Zellars v. Water & Light Co., 92 Mo. 117; Nash v. K. C. Brick Co., 83 S.W. 90, 109 Mo.App. 600. (2) If any defects or omissions occurred in plaintiff's instructions 1 and 2, they were supplied and cured by defendant's instructions, as all of the instructions must be read and construed together as a whole. Stumbo v. Zinc Co., 100 Mo.App. 636; Squiers v. Kansas City, 100 Mo.App. 630; Anderson v. Railroad, 161 Mo. 428; Perrette v. Kansas City, 162 Mo. 249; Knight v. Saddler L. & Z. Co., 91 Mo.App. 579 and 580.

OPINION

Page 870

[117 Mo.App. 375] ELLISON, J.

The plaintiff suffered injuries while in the employ of defendant in a zinc concentrating mill. He recovered judgment therefor in the trial court. It appears that plaintiff and a man named Stumbo were fellow-servants in defendant's employ under the immediate charge and direction of a foreman named Carmiday. In the mill there was a perpendicular shaft or passageway three feet in...

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