126 Mo. App. 563 | Mo. Ct. App. | 1907
Action for personal injuries charged to have been caused by the negligence of defendant. Plaintiff recovered judgment in the sum of $2,500. The injury occurred on M'arch 7, 1905, while plaintiff was working as a common laborer in the service of a gravel company at Osage City, a point on the line of defendant’s railroad. At the request of this company, defendant had placed two empty coal cars on a switch track contiguous to the gravel beds, and these were being loaded with gravel for shipment over defendant’s road. It appears that frequently in loading a car it was necessary to shift its position on the track, as cars were not always switched by defendant to the most accessible point.
One of the two cars mentioned had been partly loaded and the workmen of the gravel company who were doing that work found it necessary to move it a distance equal to about half its length in order to complete the loading. The track at this point was on a slight incline. The witnesses differ about the location of the car with respect to the spot to which it was desired to move it. Some of them say it was necessary to move it up grade, while others testify that the required movement was down grade. Plaintiff states that he was called by the workman in charge to assist in moving the
The answer, in addition to a general denial, presents the plea of contributory negligence. At the conclusion of the evidence, defendant asked the court to instruct the jury to return a verdict in its favor, and now contends that it was error to refuse the instruction. The facts we have stated are those most favorable to plaintiff, and in discussing the demurrer to the evidence, they ' must be accepted as the facts of the case, since we find them to be supported by substantial evidence.
It is argued by defendant that the action must fail because plaintiff in law was- guilty of contributory negligence. The trouble with this argument is that it depends for support on defendant’s theory of the facts which, for the purpose of a demurrer to the evidence, must-be discarded. Assuming that plaintiff was slowly moving the car up grade in the manner described, we
Further, it is contended that “the petition is fatally defective in that it fails to charge that defendant knew or by the exercise of ordinary care might have known of the defective condition of the brake complained of.” The petition does not contain such specific allegation, but the facts pleaded bring the case within the rule followed in Tateman v. Railway, 96 Mo. App. 448, which is thus expressed in Young v. The Shickle, H. & H. Iron Co., 103 Mo. l. c. 328: “An allegation that the defendant negligently furnished an appliance which was defective and unsafe was equivalent to a statement that the master knew, or might have known by use of ordinary care of the dangerous and defective character of the appliance.”
The demurrer to the evidence was properly overruled.
A careful examination of the instructions given convinces us that none of the objections to them is well taken. Other points raised are sufficiently answered in what has been said. The record is free from error, and it follows that the judgment must be affirmed.