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|
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
(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.
(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.
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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