189 Mo. App. 164 | Mo. Ct. App. | 1915
Plaintiff obtained judgment on a verdict for damages received as the result of a grab iron on a box car on one of defendant’s freight trains, then used in interstate commerce, giving away. The defendant has appealed.
The defendant insists that the plaintiff’s petition states a cause of action under the common law, but that the testimony discloses liability, if at all, under the Federal Employers ’ Liability Act, and that, therefore, the verdict of the jury, which it is charged is based on instructions under the common law should not be allowed to stand.
It is said that the opinion of the Kansas City Court of Appeals in the case of Holiter v. Wabash
The principle announced in the Moliter case is sought to be further applied to this case on the theory that plaintiff’s instructions in the case at bar permitted the plaintiff to recover the full amount of his damages if he was without fault or negligence. It is said that this is the usual instruction in cases based on the common law and that it does not recognize the right of the defendant to have applied the doctrine to comparative negligence for in the Liability Act. It is argued that' if the jury had not been required to find that the plaintiff was without fault before they were permitted to find for him, but only to reduce his recovery in case they found he was negligent, that then they might have found him guilty of some negligence and reduced the verdict accordingly, citing Rofferty v. Mo. Pac. Ry. Co., 15 Mo. App. 559. The defect in defendant’s contention is that the fact is overlooked that even under. the Employers’ Liability Act the plaintiff is entitled to recover full damages if he is without fault, consequently he is entitled to instructions as given'in this case. Contributory negligence, even under the Employers’ Liability Act, is a matter of defense, as it was .treated and alleged by the defendant in this case, and if the defendant desired an instruction upon that question it should have requested it.
Something is said in plaintiff’s brief as to the non-application of the doctrine of contributory negligence under the Employers’ Liability Act when the defendant has, as plaintiff contends, violated the Federal Safety Appliance Act (6 Fed. St. Ann. 755), but a consideration of this question is not essential to a decision and we will not discuss it.
It is next said that there was certain immaterial testimony brought out by the defendant for the purpose of prejudicing the jury against one of defendant’s witnesses, a physician. The fallacy of this contention consists in the fact that the defendant first injected this question into the ease and if the plaintiff in his effort to escape the effects of it proved facts which exonerated him and reacted in the minds of the jury on the defendant we cannot undertake to relieve defendant. This contention is without merit.
The judgment is for the right party and should be and is affirmed.