Johnson v. Mueller

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 683*—when evidence insufficient to show negligence. Where in an action for personal injuries there was evidence that a shore or support fell and struck the plaintiff, an employee of the defendant, hut it did not appear where it fell from or where it was standing before it fell or that at the time of the accident it was being used by the defendant, and there was evidence that the plaintiff before using shores had been in the habit of leaning them against upright columns, although warned not to do so, and a witness for the defense testified that the plank which struck the plaintiff “was an upright leaning against another upright,” the evidence was insufficient to support plaintiff’s claim that it fell because it had not been nailed.</p> <p>2. Master and servant, § 584*—when doctrine of res ipsa loquitur inapplicable. In an action for damages by a servant against the master for injuries received from a falling shore, the single fact that the plaintiff was struck by a falling shore is not sufficient to show the negligence of the defendant.</p> <p>3. Master and servant, § 127*—what is duty as to safe place where conditions are changing. It is the duty of the master to use reasonable care to furnish a reasonably safe place to work, even where the conditions are changing from time to time during the performance of the work.</p> <p>4. Master and servant, § 833*—when modification of instruction harmless. It is not prejudicial error for the trial court to modify an instruction on assumption of risk offered by the defendant in an action of negligence by striking out the words, “and the law presumes plaintiff charged for such risks,” where these words merely repeat essentially what was already contained in the instruction, namely, that plaintiff “contracted with reference to” such risks.</p> <p>5. Limitation of actions, § 58*—when additional count not tarred. A demurrer to a plea of the statute of limitations to ti.i additional count filed after verdict is properly sustained where the additional count set up the same cause of action originally declared on.</p>