Harty v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 04 June 1888
• Citation: 95 Mo. 368,8 S.W. 562
• Court: Missouri Supreme Court
• Parties: HARTY v. ST. LOUIS, I. M. & S. RY. CO.

8 S.W. 562

95 Mo. 368

HARTY v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

June 4, 1888.

1. MASTER AND SERVANT — DEFECTIVE APPLIANCES — PLEADING AND PROOF.

In an action against a railroad company by an employe for personal injuries alleged to have been sustained while running a hand car under the orders of defendant's foreman, where the only allegation of the petition as to the defective condition of defendant's hand car which was the cause of the injury is that a water-keg thereon was not in its proper position, evidence to show that the defective condition of the car was due to the disposition of the tools on the hand car is inadmissible.

2. SAME — DEFECTIVE APPLIANCES — INSTRUCTIONS.

In such case, where plaintiff testified that his injury was caused by the improper location of a water-keg on defendant's hand car, an instruction authorizing the jury to find a verdict, if they believed there was not a sufficient number of men furnished by defendant's foreman to help plaintiff to remove the hand car from the track, is erroneous.

3. SAME — NEGLIGENCE — LIABILITY OF MASTER.

In an action against a railroad company by a employe for injuries received while removing a hand car on the order of defendant's foreman, an instruction predicated on the foreman's power to hire or discharge men is erroneous, where there is no evidence as to such power.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Bennett Pike and Henry G. Herbell, for appellant. John W. Collins and A. R. Taylor, for respondent.

NORTON, C. J.

This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant. Plaintiff had judgment, from which the defendant has appealed, and assigns for error the action of the court in admitting improper evidence, and in giving and refusing instructions. It is alleged in the petition that plaintiff was in the employment of defendant as a trackman, and under the direction of one Frank Roach, defendant's section foreman; that he was ordered by said Roach to get on a hand car, and run it to a certain switch, and remove it from the railroad, in order to get it out of the way of an approaching train; that, to properly control said hand car, it required two able-bodied men to be on it; that the other man on the car with him was physically incompetent to aid plaintiff in controlling the car; that in the performance of the duty assigned him one of his legs was caught between the cog-wheels and boxing of said car while performing said work, and was greatly iacerated, stiffened, and made shorter than the other. It is then alleged that plaintiff was so caused to be injured by the negligent act of defe...