37 Mo. App. 676 | Mo. Ct. App. | 1889
This action arises out of the same state of facts as in the case of Albert Goins v. C., R. I. & P. Ry. Co., reviewed at the last term of this court.. In that case the boy, Albert Goins, by his guardian, sought and recovered damages for injuries received, while in this action Prudy Ann Goins, Albert’s mother, seeks to recover for. loss of Albert’s services by reason of the same injuries. We refer now to the opinion delivered at the last term for a full understanding of the facts giving rise to this suit.
At the hearing of the former case we approved the action of the trial court in giving, among others, the following instructions to the jury, to-wit:
“The jury are instructed that it was the duty of the defendant to use all reasonable care and caution to provide for its employes good and well constructed cars, adapted to the purpose for which they are used, and also to use all reasonable care and watchfulness in keeping said cars and the appliances and parts thereof in*679 Bafe condition. And if the jury find from the evidence that the defendant failed so to do with respect to the pin or link in the draw head of the car which Albert Goins was coupling to the train when he was injured, and that the said link and pin was bent and misshapen so as to be fast in the draw head, and thereby became unsafe to use in coupling said car, and that by reason of the failure of the defendant to use reasonable care and watchfulness with respect to said car, the said link and pin were negligently or carelessly permitted to remain fast in said draw head, and that while in that condition the defendant kept said car in use,' and the plaintiff, while using reasonable care in coupling said car, had his hand caught between the draw heads of the cars, and that he received said injury by reason of said defective condition of said link or pin, then the jury will find for plaintiff, provided the said Albert Goins, by reason of his youth, if he was. a. youth, and inexperience in such matters, if he was inexperienced, did not know of the danger of coupling said car in its then condition. ”
We have italicized in the foregoing that portion of the instruction then questioned, and we held, following Dowling v. Allen, 74 Mo. 13, such qualification of the general doctrine to be proper. But in the case now under review the trial court varied, in one important particular, from the foregoing instruction and saved the plaintiff’s right of recovery, “if said Albert Goins did not know of the danger of coupling said car in its then condition,” eliminating from such provision that such want of knowledge must arise from the youth and inexperience of the boy. In other words, the jury, in the case at bar, were told that however patent and visible the defect which occasioned the injury, or however obviously dangerous the use of such appliance might be, yet if Goins did not know of such danger, etc., a recovery could be had in a suit against the railroad
