69 Mo. App. 256 | Mo. Ct. App. | 1897
Lead Opinion
The answer was a general denial accompanied with the plea that the alleged defect in said privy complained of was open, visible and obvious, of which the deceased had equal knowledge with defendant and that by reason of such knowledge on the part of the deceased he assumed all the risk in using the said defective privy.
The reply denied these allegations of the answer.
Now if the plaintiff’s contention be conceded that the uncontroverted facts justify the deduction of the inference that the privy was of negligent construction, then is the plaintiff entitled to recover. -The evidence further disclosed that the deceased had, during the period of his employment, habitually used the defendant’s privy. The defect and danger was manifestly so
The plaintiff on the undisputed facts was not entitled to a submission to the jury (Bell v. Railway, 72 Mo. 50; Barton v. Railway, 52 Mo. 253), and therefore while the trial court erred in disallowing the defendant’s demurrer, it did not err in setting aside the verdict.
It follows that the order of the trial court from which the appeal is prosecuted will be affirmed.
Rehearing
ON MOTION FOR REHEARING.
The plaintiff’s insistance now is “that the opinion is based upon the case of Fugler v.
If the doctrine of Fugler v. Bothe was overturned by Settle v. Railway it was restored and vitalized by the ruling in Steinhauser v. Spraul.
The motion must therefore be denied.