88 Mo. 293 | Mo. | 1885
This cause was here, on appeal, at the October term, 1881, and the judgment of the court of appeals, reversing that of the circuit court, was affirmed. On a re-trial of the cause, plaintiff obtained a judgment for ten thousand dollars, from which this appeal is prosecuted. The case is reported in 74 Mo. 14, and we adopt the statement there made, as substantially .correct, except that on a re-trial of the cause, defendant introduced evidence contradictory of material testimony adduced by the plaintiff. Plaintiff testified that King directed him to “go and stop off the engine.” King testified that he had no recollection of giving plaintiff an order, or direction; that, “when the noon bell rang,
The testimony on both sides was to the effect that there were other pass-ways than that taken by plaintiff to the place whére he had to go to slnit off Steam. Neither plaintiff nor any other witness testified that lie was directed by King to go the route that took him over the set screw.
Among other instructions the court, at plaintiff’s instance, gave the following :
“ The court instructs the jury that if they find from the evidence that the employe of the defendant, named King, had charge or management of that part of defendant’s work embracing the construction of the turn-table, and the machinery used in such construction, and that the plaintiff who was injured was directed by the foreman, Fisher, to go with said King and do whatever he directed, then said King was not the fellow servant of said plaintiff, and the defendant is responsible for his acts, and if the jury find from the evidence that, under the circumstances of this case, it was negligence or recklessness for said King to direct the plaintiff to perform the work in the manner he did, when he received the injury, the defendant will be responsible therefor.”
This clearly assumes that King not only directed the plaintiff to shut off the steam, but to do it in the manner in which he did it when he received the injury.- It does not tell the jury that if * * * they found .the fact to be, that King directed the plaintiff to shut off the steam, in the manner in which plaintiff did
The other instructions for plaintiff are objected to as submitting the question of negligence to the jury, generally, without any declaration of what fact constituted negligence ; and also that they assumed that plaintiff was not of an age to be aware of the danger from the set screw and collar. As to the latter contention, we do not think that there is any such assumption as alleged.
By the second instruction the jury are told that “ although they may find, from the evidence, that the set screw and collar attached to the shaft were visible, and the danger in passing over the same was apparent to a person of mature years, or one accustomed to the use of such machinery, yet if the jury further find that by reason of the youth and inexperience of plaintiff, he was not aware of the danger to himself from said set screw and collar, the fact that they were so visible or apparent will not defeat his right to recover in this case.”
The obvious meaning of the instruction is, that the jury were to find as a fact, first, the age of plaintiff ; and, second, that he was too young and inexperienced to be aware of the danger to which he was exposed. There is no assumption of either of these propositions. How old plaintiff was, and whether old enough to be aware of the danger to which he was exposed were submitted to the jury as questions of fact by the instruction. The first instruction declared that, “if the danger was not apparent to a party of the age and experience of plaintiff, and that he did not have sufficient, or reason
The instructions for plaintiff -were sufficiently specific in regard to what constitutes negligence of the character complained of,.and which the testimony tended to prove. We think the fourth instruction objectionable. It declares that, “Although the jury may find, from the evidence, that the plaintiff was guilty of some negligence at the time of the injury, yet if they find that such negligence was slight or remote, and that the negligence of defendant was the direct cause of the injury to plaintiff, he will not be precluded from recovery by reason of such slight or remote negligence.” Patting out of view the question of plaintiff’s age and inexperience, and considering him as an adult, if guilty of any negligence contributing directly to produce the injury, -whether slight or not; he could' not recover. What, but for consequences which follow, might- be esteemed slight negligence, sometimes directly occasions serious injury to the negligent party. The age and inexperience of the party may be taken into consideration in passing upon the question of negligence alleged against him. For instance, no negligence is imputable to a child, although its own carelessness may produce its injury — and less care and foresight are exacted of an inexperienced youth than of a man of mature years. If, in this case, the plaintiff was too young and inexperi
The correct rule is succinctly declared in Boland v. Ry., 36 Mo. 484. No complaint is now made of this instruction, and we notice it because the judgment will be reversed and the cause remanded ; and if this instruction should be given again it might be assigned as error on another appeal, and cause another reversal. The instructions, except as herein otherwise indicated, we think, fairly declared the law to the jury.
We are urged to re-consider the question passed upon when the cause was here before, as to the relation between King and plaintiff. We then held that they were not fellow-servants, and adhere to what was then announced on that subject, and refer to Moore v. Railroad, 85 Mo. 588, and McDermott v. Railroad, 87 Mo. 285. Plaintiff applied for a change of venue from the St. Louis circuit, and it was awarded to the circuit court of Louis county, and this is assigned as error. Section 3729, Revised Statutes, provides that: “A change of venue may be awarded * * * for the following causes * * * fourth, that the opposite party has an undue influence over the inhabitants of the county.” This section was amended in 1881, by adding these words to those last quoted : “ But in no case shall more than
Counsel also insist that the court erred in refusing to permit them to introduce evidence to show that the petition for change of venue was not true. Section 3733is as follows : “If reasonable notice shall have been given to the adverse party, or his attorney of record, the court, or judge, as the case may be, shall consider the application, and, if it be sufficient, a change of venue shall be awarded to some county where the cause, or causes, complained of do not exist,” etc. The only question to be determined by the court, under that section, is the sufficiency of the application. The section does not require that the judge shall be satisfied of the truth of the allegations. If the petition is sufficient in form and substance, then the statute is peremptory, and the change of venue shall be awarded.
But it is insisted that reasonable notice of the application was not given to defendant. It appears from the record, that on the thirty-first of January, 1882, plaintiff filed his motion for a change of venue and notice of his application. February 1, 1882, he had leave to withdraw that motion and thereupon re-filed it, together with notice of the application, and on the third of February, 1882, the court awarded the change of venue. The fair inference is that the same motion was re-filed, and that a new notice was given February 1. We cannot say that two days notice is not reasonable, but here the first notice was given January 31, and in Reed