6 Mo. App. 102 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This cause, on a former occasion, was sent back for retrial, by the Supreme Court, and will be found reported in 62 Mo. 35. It is unnecessary, for the purposes of this opinion, that any fuller statement of the case should be made. It is enough to x-efer to the opinion just cited.
The only errors insisted upon here are thus stated by counsel for appellant in his brief: “ It is admitted by the pleadings in this case that respondent had full knowledge of the dangerous condition of the floor of the hoist at the time it gave way and caused his injuries; aixd the case should not have been permitted to go to the jury. Respondent’s second and third instructions are error. They both ignore the defence set up and proved, that the respondent knew, at the time he received the injuries, of the dangerous condition of the floor of the hoist. The court committed error in refusing defendaixt’s instructions, as they were based upon facts admitted by the pleadings and proved at the trial. The case was sent back by the Supreme Court to try the very issue that was stricken out of the petitioix and admitted by the reply. Respondent took from his petition all cause of action by striking out his allegations of want of knowledge of the danger at the time of his injuries. It was incumbent on respondent to allege and prove that he was ignorant of the defect and the
Where thu appliances used are palpably dangerous, if the servant uses them he takes the risk ; but where no immediate danger is threatened, or where it is reasonable to suppose that ■ by great caution and skill danger may be avoided although the machinery or appliance is still used, the servant does not assume the same risk; and if the servant has called the attention of his superior to the supposed risk, and has had a promise that the needful repairs will be made, he may well rely upon that promise until such time has elapsed as would show that the ¡iromise will not be carried out, or that it has been broken; and if, supposing that by using care he may continue his work and be safe, and relying, as he has a right to do, upon his master’s promise and a belief that his employer will be duly mindful of his servant’s rights, he continues in his employment and is injured, the master is liable. Conroy v. Vulcan Iron-Works, supra.
Upon these principles the case was tried. The pleadings were framed in accordance with them. The instructions gave them to the jury as the law of the case; and these instructions correctly set forth the law and were warranted by the evidence, except that the second instruction for defendant authorized the jury to find for the defendant if they believed that it permitted the hook to drag, and that this dragging caused the injury. This instruction should not have been given, because there was some evidence that this dragging of the hook was unavoidable. But of this instruction defendant cannot complain.
The issue stricken out of plaintiff’s petition and admitted by the reply was the question whether or not
The case seems to have been carefully tried. The damages do not seem to be out of proportion to'the injury. Our attention is called to no error to warrant a reversal of the judgment, and it is therefore' affirmed'.