Popineau v. Waverly Brick & Coal Co.

• Citation: 153 S.W. 1076
• Parties: POPINEAU v. WAVERLY BRICK & COAL CO.
• Decision Date: 17 February 1913
• Court: Court of Appeal of Missouri (US)

153 S.W. 1076

POPINEAU v. WAVERLY BRICK & COAL CO.

Kansas City Court of Appeals. Missouri.

February 17, 1913.

Rehearing Denied March 3, 1913.

APPEAL AND ERROR (§ 882) — INSTRUCTIONS — CURE OF ERROR.

In an employé's action for injuries due to a portion of a roof falling upon him, error in assuming, in an instruction given for plaintiff, that the roof was not reasonably safe was cured by an instruction, given at defendant's request, which made the same assumption.

Appeal from Circuit Court, Lafayette County; Sam Davis, Judge.

Action by William Popineau against the Waverly Brick & Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cowherd, Ingraham, Durham & Morse and Hale Houts, all of Kansas City, for appellant. Alexander Graves, Chas. Lyons, and C. L. Ristine, all of Lexington, for respondent.

ELLISON, P. J.

Plaintiff was an employé of defendant in one of its coal mines, and was injured therein. He charges the injury to defendant's negligence, and brought this action for damages. He recovered $2,000.

Plaintiff's injuries were occasioned by portions of the roof over its entryway falling upon him. There is but a single objection made to the judgment, and that is directed to instruction No. 2, given for plaintiff. It submits certain hypotheses, and directs a verdict if they are found to be facts. The objection made is that it is so worded as to assume the roof was not reasonably safe. That is the ground of the objection, though there are comments which attempt to enlarge it somewhat.

It may be conceded that the instruction has the technical fault stated by defendant; but it is of no avail, since defendant, by its own instruction, confessed the truth of the matter assumed. In its instruction No. 3 it directly adopts the fault in plaintiff's, and thereby cures it. Riggs v. Met. St. Ry. Co., 216 Mo. 304, 318, 319, 115 S. W. 969; Phelps v. City of Salisbury, 161 Mo. 1, 14, 61 S. W. 582. In the first of these cases the plaintiff's instruction assumed it to be the duty of the defendant's servants to look ahead. An instruction for defendant is then quoted, and the court said of it: "The duty to look ahead is assumed in that instruction. Its theory was the theory of plaintiff's instructions. Hence, if error at all, it was common error. That common error is not reversible error is not to be gainsaid." In the other case the court, speaking of an instruction, said: "This instruction was therefore unwarranted by both the pleadings...