Hartmann v. St. Louis-San Francisco Railway Co.

FRANKLIN FERRISS, Special Judge

(concurring).

I concur in the result of the majority opinion, and I agree with most of the opinion. However, my reasons for holding that instruction No. 1 was not erroneous are sufficiently at variance with the majority view to warrant a separate statement thereof.

The majority opinion fails to recognize the distinction between (1) a finding that the defendant had actual or constructive knowledge of certain physical conditions, which in this case consisted of a rail raised at least two inches above a rough country road; (2) a finding that said raised rail rendered…