8 Mo. App. 538 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is an action to recover damages for injuries received by the plaintiff .while engaged, as abrakeman, in uncoupling cars in the defendant’s yard in St. Louis. The cars were moving slowly,t and the plaintiff, as usual in uncoupling, had stepped on the track between two of them to withdraw the pin. The plaintiff’s case is, that at the point in the track where, to do his duty, he was then obliged to walk, as the
Into the details of the testimony — except upon one point, in regard to which the defendant claims there is no evidence— it is not necessary to go, as many questions which the defendant now argues resolve themselves into matters touching the weight of evidence and the credibility of witnesses. Thus, whether the foot of the plaintiff caught in the frog, which was a permanent part of the track, and the peculiarity of which the plaintiff, who had been in the employ of the company for several years, well knew, was a question which was directly put to the jury by an instruction of the court, who told the jury that if the injury was caused by the plaintiff’s foot being caught in the frog, instead of under the switch, the plaintiff could not recover. The finding upon this and upon other essential issues shows that, in spite of contradictions and confusions, real or apparent, which the testimony of the plaintiff and the witness Bour
It is complained there was' error in giving the following instructions: —
“And if the jury believe, from the evidence in the cause, that plaintiff was caused to be thrown down and the wheel of defendant’s car was caused to pass over plaintiff’s arm and foot, and cause said injuries to plaintiff’s arm and foot, by reason of a hole dug in defendant’s track, under a switch-rod, by defendant’s servants whilst repairing defendant’s track, and by said servants left open and uncovered — if the jury so believe; and if the jury believe, from the evidence, that said hole in defendant’s track, in the condition in which it was left by defendant’s said servants whilst repairing said track, rendered said track dangerous to plaintiff whilst in the discharge of his duties as such brakeman, made said track and defective; and if the jury believe, from the evidence, that plaintiff did not know of the existence of said hole in said track, and that, whilst exercising reasonable care as such brakeman, could not have discovered said hole before he sustained said injuries ; and if the jury believe, from the evidence, that said servants of defendant engaged in repairing defendant’s track did not use reasonable care in leaving said hole in said track, and that such act was negligence on the part of said servants ; and if the jury believe, from the evidence, that the work of keeping defendant’s track in
The only questions now made are in regard to those portions of the instructions which we have put in quotation-marks, which portions cover the question of negligence on the part of the defendant.
The criticism made is, that the above assumes that a mere workman or day-laborer of the defendant is its agent or representative, to whom its authority has been delegated; that the instructions do not require that the company should know of the alleged defective condition of its track, or that the jury should find that, by reasonable care and diligence, the company might have thus known. This objection may best be considered in connection with the objection that there was no evidence tending to show that the hole was made by the section-men of the defendant, and therefore none to support the instruction on that point.
The defendant’s evidence we are not concerned with. There was testimony on the part of the plaintiff tending.to show that employees of the defendant whose duty it was to keep the track in order were clearing the track in the morning of the day of this accident, which happened about two o’clock in the afternoon ; that these men were digging the earth, the weather being very cold, to keep the track, crossings, and switches free and in proper order. A police officer testified that, half an hour after the accident happened, he examined the switch-rods, and that they were dug out about half a foot; that the work had been done on the same day; that he had seen the men repairing the track there on that day, but it was from the appearance of the ground that he inferred that the earth under the switch-rods had been dug out on that day. This is testimony from which the jury may fairly have inferred that the earth under the rods had
It is not easy to understand on what legal ground the defendant rests its position that, upon the basis that the receipts of the plaintiif were procured by fraud, the plaintiif was yet bound to return the money as a condition precedent to bringing this suit. The two things have no connection. If one pays money for goods,'he cannot keep the goods and recover the money, thus affirming the contract which he seeks to rescind. But the plaintiif seeks to rescind no contract, nor do the rights which he now asserts grow out of any, the consideration of which is in any way in question. The plaintiff sues for his injury. It is the defendant who asserts an acquittance, while the jury have found there was none: that the plaintiff signed the papers believing them mere receipts for money. In Jarrett v. Morton, 44 Mo. 276, the parties agreed on the settlement, and the plaintiff, while
No error is shown in the action of the court below, and the judgment of the court must be affirmed.