60 Mo. 160 | Mo. | 1875
delivered the opinion of the court.
The judgment in this case must be reversed, because the petition alleges .the minority of plaintiff, and the appointment of a next friend by the Circuit Court of Buchanan county? which allegations are denied in the answer, and nó proof was offered on the subject. The point was raised in the Circuit Court by a demurrer to the evidence.
The question in regard to cumulative evidence becomes unimportant in this view of the ease, as upon a new trial the defendant can of course introduce his newly discovered evidence.
We have examined the instructions in this case, and see no objection to them. The third instruction asked by the defendant, was modified properly. As it stood, it exempted the defendant from liability, notwithstanding the unsafe condition of the track, if the plaintiff knew the condition of such track, or could by the exercise of ordinary diligence have known it. The court struck out the last paragraph, and, we think, properly.
It is not the business of the servant, nor has he the means of ascertaining whether the machinery or structure, upop which he is employed to operate, is defective. It is the duty of the employer to furnish these appliances ; and if he fails to .do so, he is responsible for injuries resulting from defective machinery. (Gibson vs. Pac. R. R., 52 Mo., 372.)
There seems to be no question in the case in regard to fellow employees. The petition and the evidence under it were based solely upon the employment of plaintiff'on a defective, dangerous and improperly constructed track.
Judgment reversed, and capse remanded.