Lewis v. Wabash Railroad
Missouri Court of Appeals
Appeal from Audrain Circuit Court. — Hon. Jas. D. Barnett, Judge. (1) The allegations of the petition are insufficient to constitute a cause of action against the master for an injury caused by the negligence of a fellow servant. 26 Cyc., 1393, and authorities cited, note 79; Moss v. Railroad, 49 Mo. 167; Tucker v. Telephone Co., 132 Mo.
Read the full summary
Appeal from Audrain Circuit Court. — Hon. Jas. D. Barnett, Judge. (1) The allegations of the petition are insufficient to constitute a cause of action against the master for an injury caused by the negligence of a fellow servant. 26 Cyc., 1393, and authorities cited, note 79; Moss v. Railroad, 49 Mo. 167; Tucker v. Telephone Co., 132 Mo. App. 418; 1 Labatt on Master and Servant, sec. 179, p. 395; Railroad v. Hetzer, 135 Fed. 272. The petition fails to charge that the plaintiff was injured by reason of any negligence. Mack v. Railroad, 77 Mo. 232; Schmidt v. Kansas City, etc., Co., 90 Mo. 284.…
1Opinion of the CourtGoode, J.
(after stating the facts). — 1. Defendant’s counsel objected to the reception of testimony, saying the petition stated no cause of action, and this Avas the only attack on that pleading prior to verdict, except by two irrelevant motions.
It is argued the petition counts only on common-law negligence in the retention of an incompetent servant; but if it does, it states a cause of action, and the objection was rightly overruled.
2. As the averment of retention of a careless engineer was not made good Jby proof, a nonsuit was claimed on the theory that the aid of the statutes was not invoked and…
2Cases cited3 opinions
- Rutledge v. Missouri Pacific Railway Co.Supreme Court of Missouri · 1894
- King v. Phoenix InsuranceMissouri Court of Appeals · 1903
- Bobb v. DillonMissouri Court of Appeals · 1886
3Cited by4 opinions
- Summa v. Morgan Real Estate Co.Supreme Court of Missouri · 1942
- Estate of Largue v. RamseyMissouri Court of Appeals · 1918
- Hill v. Kansas City Southern Railway Co.Missouri Court of Appeals · 1914
- Walker v. Wabash RailroadMissouri Court of Appeals · 1916