28 Mo. App. 622 | Mo. Ct. App. | 1888
delivered the opinion of the court.
The petition states in substance, that the plaintiff’s deceased husband,' George Moore, was in his lifetime in the defendant’s employ as a switchman ; that, on December 24, 1886, while in the discharge of his duties as such,
The answer was a general denial, a plea of contributory negligence by the deceased, and a plea of release and discharge by the plaintiff after suit brought, for the consideration of five hundred dollars ; the alleged release being in writing, and filed with the answer.
The reply was, first, a general denial, except as to-the signing of the release and the receipt of the five hundred dollars; second, that the release and alleged discharge were obtained from the plaintiff by fraud and deceit of the defendant’s agent, and by undue influence practiced upon the plaintiff by the defendant’s agent, while she was in the office of said agent; that, at the time, she was in infirm health and in an extremely nervous condition, and was, by the said false and fraudulent representations of said agent, induced to sign said release, and that it was 'not her act; that, as soon as she-became conscious of what she had done, she caused the said money to be tendered back to the defendant, and the said release to be demanded back ; which the defendant refused, and she still offers to return the said money.
The testimony submitted to the jury tended to show that, at about 6:15 p. m., when it had become somewhat dark, the locomotive and tender were backing northwardly, at a slow rate of speed, on a switch track within
The whole theory of the plaintiff’s right of recovery, if any she has, rests upon two alleged facts: First, that the existence or presence of the drain, as situated and constructed, was imputable to negligence on the part of defendant; second, that the deceased, while alighting from the tender with due and ordinary care, stepped unintentionally into the drain and was thereby thrown off his balance, so that he fell and was run over by the tender. Both these facts are essential. If either be wanting, or not sufficiently proved, there can be no recovery by the plaintiff.
If, as clearly appeared from the evidence, the drain was considered by the defendant’s servants and agents to
The other supposed fact is, if possible, yet further removed from any substantial support in the evidence. We search this record in vain for the least filament of testimony tending to show,that the deceased, in attempting to alight from the tender, put his foot into the drain. All is guesswork. It is conjectured that he chose to step off at that particular point. It may as well be conjectured that he was there seized with a fit and fell off, or that he fell off from any one of a dozen other causes. It is further conjectured that his foot went into the drain. There is quite as much evidence that he stepped on the end of the tie, or on the solid ground outside of the drain. All these matters of mere conjecture are equally consistent with the known facts. No one of them is confirmed by any direct testimony, and we have no right to adopt one in exclusion of the others, because of its tendency to subject the defendant to a
As to the rulings' of the court on the evidence and' on the instructions, we should find no fault with either,, could it be admitted that there was any testimony substantially tending to prove the facts most essential to the plaintiff’s recovery. This remark applies as well to the litigation over the alleged release as to the other branch of the controversy.
With the concurrence of all the judges, the judgment is reversed and the cause remanded..