97 S.W. 233 (Mo.App. 1906), Post v. Chicago, Burlington & Quincy Railway Co.

Citation:97 S.W. 233, 121 Mo.App. 562
Opinion Judge:JOHNSON, J.
Party Name:BIRDY B. POST, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Respondents
Attorney:J. H. Wise for appellant. O. M. Spencer, N. O. Borders and William Henry for respondents.
Case Date:November 05, 1906
Court:Court of Appeals of Missouri
 
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Page 233

97 S.W. 233 (Mo.App. 1906)

121 Mo.App. 562

BIRDY B. POST, Appellant,

v.

CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Respondents

Court of Appeals of Missouri, Kansas City

November 5, 1906

Appeal from the Caldwell Circuit Court.--Hon. Joshua W. Alexander, Judge.

AFFIRMED.

Judgment affirmed.

J. H. Wise for appellant.

(1) Section 592, R. S. 1899, requires "a plain and concise statement of the facts constituting the cause of action. Section 610 requires that "only substantive facts necessary to constitute the cause of action" shall be stated. Section 676 declares it to be the duty of the court "to distinguish between form and substance." Section 659 provides that the court must "disregard any defect in the pleading which shall not affect the substantial right of the adverse party." Section 629 provides that "in the construction for the purpose of determining its effect, its allegations shall be literally construed with a view to substantial justice between the parties." The petition sufficiently states a cause of action against the defendant. Young v. Iron Co., 103 Mo. 342; Seckenger v. Mfg. Co., 129 Mo. 590; McMullin v. Railroad, 60 Mo.App. 231; Bugler v. Booth, 43 Mo.App. 44; Stillwell v. Hamm, 97 Mo. 579; Ackeman v. Green, 93 S.W. 260. (2) It is the duty of the master to furnish for the use of his servant, while in the course of his employment, appliances and instruments proper, safe, and suitable for the purpose for which they were furnished, and for the performance of the service required; and this rule extends to and embraces any instrument or appliance, animate as well as inanimate. McCready v. Stepp, 104 Mo.App. 340; Lee v. Railroad, 112 Mo.App. 392; Fouts v. Swift & Co., 113 Mo.App. 531; Warner v. Rock Island, 62 Mo.App. 192; Eads v. Gains, 58 Mo.App. 594. (3) A demurrer admits all the allegation in the petition for purpose of testing its sufficiency. Hill v. Gould, 129 Mo. 106; Hallock v. Brier, 80 Mo.App. 331.

O. M. Spencer, N. O. Borders and William Henry for respondents.

(1) In actions of negligence it is necessary at least to make proper averments specifying the act, the doing of which caused the injury, and to allege that the act was negligently done. Thompson on Negligence, 1246; Mack v. Railroad, 77 Mo. 234. (2) As a general rule negligence is an omission of duty (Swineford v. Franklin County, 73 Mo. 283), and when the...

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