Post v. Chicago, Burlington & Quincy Railway Co.
| Decision Date | 05 November 1906 |
| Citation | 97 S.W. 233,121 Mo.App. 562 |
| Parties | BIRDY B. POST, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Respondents |
| Court | Kansas Court of Appeals |
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 negligence counted on is a breach of duty, the facts out of which the duty arises must be pleaded. Field v. Railroad, 76 Mo. 614, and cases there cited in appellant's brief. (3) In all actions grounded on negligence a causal connection between the negligence and injury must be alleged (Goransson v. Mfg. Co., 186 Mo. 307), and no recovery can be allowed on any theory of fact as to the natural or physical cause of the injury other than the cause alleged. Behen v. Transit Co., 186 Mo. 330.
--Action to recover damages resulting from personal injuries alleged to have been caused by the negligence of defendant. A demurrer to the petition was sustained by the trial court on the ground that the facts stated constitute no cause of action and plaintiff appealed. The facts pleaded, in substance, are as follows: Plaintiff, a common laborer employed by defendant, a railway company, while engaged in the task of cutting weeds on defendant's right of way struck the stalk of a large weed with the cutting edge of the scythe he was wielding. The blow failed to sever the stalk and its force was communicated to the weed causing the latter to sway towards plaintiff and strike him a violent blow in the face. The sight of his left eye was completely destroyed and that of his right eye permanently impaired. It is alleged that plaintiff was working under the direction of defendant's foreman and the specific acts of negligence charged are the failure of defendant to employ reasonable care to furnish plaintiff a reasonably safe place in which to work and to provide him with a reasonably safe tool with which to work. The place where the act was performed was "on a slanting bank on said railroad...
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