Newby v. Chicago, Rock Island & Pacific Railway Co., 19 Mo. App. 391

Newby v. Chicago, Rock Island & Pacific Railway Co.

19 Mo. App. 391 | Mo. Ct. App. | 1885

Ellison, J.

The instruction given for plaintiff was erroneous. The first part of it, in regard to the duty of *397the defendant to furnish suitable cars, properly constructed, and in safe condition, was correct as a proposition, and is supported by the cases of Potts v. Ry. Co. (17 Mo. App. 394), and Brown v. Ry. Co. (18 Mo. App. 568), but there was no evidence to support that part of it in reference fo the door being broken or in an unsafe condition. The statement contained such an allegation, in addition to its becoming unfastened, while the evidence only goes to show that the door was left open and unfastened, for the reason that the defendant’s servants did not give the plaintiffs’ servants time to shut and fasten it. Under the contract it was plaintiff’s duty to load the car, and he did, in fact, do so. It would be his duty under this contract to close the car doors, and, of course, defendant must give him time to do so before starting the train, that is, must not prevent his doing so by starting the train. We think, too, that under the circumstances of this case plaintiff should have notified defendant’s servants, when he saw they were about to start, in ignorance of the door not yet being fastened, that he had not yet secured it, so that he might have been given time. The evidence tended to show that he had opportunity to do so, for he says the conductor was on -the opposite side of the car from him, and he heard him giving directions for the train to go ahead. Though defendant might be chargeable with notice that its car doors were broken and unsafe it could not be presumed to know, in the absence of proof, that the door had been left open or unfasr tened by plaintiffs.

As the contract fully shows it was plaintiffs’ duty to load the cattle, there was no necessity of inserting anything in defendant’s second instruction as to the custom. The latter part of it, in regard to demanding time to shut the door, should be qualified, also, by adding, if he had opportunity to do so. The same qualification should be added to the third and tenth. The sixth and seventh were correct under the evidence as it has been preserved. The case of Atchison v. Ry. Co. (80 Mo. 213), contained a contract with a promise identical with the one in this *398case, and the principle announced in that case is ample .authority for what is said in this.

The judgment is reversed and the cause remanded.

All concur.