51 Mo. App. 453 | Mo. Ct. App. | 1892
This was an action to recover damages for personal injuries. It was alleged in the petition that the plaintiff was employed as a common laborer, with others, on one of defendant’s “work trains,” and while engaged in unloading a car under the control and direction of a boss whose duty it was to direct plaintiff in and about his duties, and who, while said train was in mótion, negligently ordered the plaintiff with his co-employes to jump therefrom without stopping the said train, by reason of which plaintiff without any fault on his part was injured, etc.
The defense interposed was a general deniai coupled with a plea of contributory negligence. There
I. Defendant in that part of its brief setting forth the ‘ 'points intended to be insisted on in aTgument” (Revised Statutes, sec. 2301), and which we must practically consider as its assignment of eTrors so far as the same is necessary, complains first that the trial •court erred in overruling its motion for a new trial, which was on the ground of newly discovered evidence.
It appears from the additional abstract of the record that there were a number of counter affidavits to those of the defendant filed by the plaintiff in the court below which have not been preserved and presented to us. We are unwilling to look ¿t the affidavit of the ■defendant, unless the other affidavits which were presumably considered by the trial court were likewise before us. We must presume everything in favor of the correctness of the action of that court under the circumstances disclosed by the record in this case. If the defendant desired us to review the action of the trial court on a question of this kind, it should have presented and brought up in the record all the affidavits that were before the court when it acted. In the .absence of all the affidavits which the trial court had before it for consideration, we cannot tell whether there was an abuse of discretion or not in refusing the new trial.
The defendant further questions the judgment on the ground that the verdict is contrary to the evidence. It is needless to say that, while the evidence for the plaintiff is not free of conflict, it is not at all like that in Empey v. Cable Co., 45 Mo. App. 422. Here there was substantial evidence adduced by the plaintiff to sustain the verdict of the jury, and such being the case it would be on our part an unwarrantable invasion of the province of the jury to set that verdict aside
III. The defendant further contends that the trial court erred in modifying and then giving its second instruction which, as modified, declared: “Even though the jury should find from the evidence that plaintiff was injured in jumping from defendant’s train while the same was in motion, and that plaintiff was requested or directed to get off said train by the foreman or conductor of defendant under whom plaintiff' was working, yet plaintiff was bound to use such care as a person of ordinary prudence would exercise under like circumstances, and to abstain from getting off or jumping from said train when he knew it was dangerous to do so, and if the jury find that plaintiff did not act with such care and prudence as an ordinarily prudent and cautious man would take under the circumstances, he-is guilty of negligence directly contributing to his-injury.” The modification consisted in interpolating-therein the italicised words.
The defendant’s insistance is that the modifying-words introduced into the latter part of the instruction authorized the jury to find for plaintiff, even though he-jumped from the train when he knew it was dangerous to do so. An examination of the wording of the instruction will show that the italicised words interpolated therein by the court are no more than the expression of what was plainly implied without them. The words, “such care and prudence,” have reference to that kind or degree thereof antecedently described, which plaintiff was bound to use; that is, such “as a person.
IY. The defendant further objects that the court erred in refusing its fourth instruction, and in modifying and then giving it. As modified it told the jury if they found from the evidence that the conductor of the train under whom plaintiff was working ordered “all off” while said train was standing, and that sufficient time elapsed before said train started for plaintiff to get off, and that plaintiff did not obey said order, but remained on said train until it had started, and then without further orders from Blair, the conductor, jumped off and was thereby injured, then said injury was the direct result of plaintiff’s own negligence, and the jury must find for the defendant. The italicised words show wherein it was modified. This instruction as asked would have been well enough had it not been for the plaintiff’s 'evidence to the effect that the defendant’s boss ordered the plaintiff to get off the defendant’s 'train after it was in motion. Thus modified the instruction did not ignore the plaintiff’s evidence.
If the plaintiff jumped from defendant’s train while in motion in obedience to the order of defendant’s boss, and- in doing so he was hurt, this would not bar his right of recovery, unless the danger to be incurred in so obeying the order of defendant’s boss was so glaring that a reasonably prudent person would not have undertaken it. Herriman v. Railroad, 27 Mo. App. 435; Stephens v. Railroad, 86 Mo. 221; Shortel v. City of St. Joseph, 104 Mo. 114; Ischer v. Railroad, 95 Mo. 261; Wood on Master & Servant, secs. 387-8, p. 775; Berea Stone Co. v. Kraft, 31 Ohio St. 287; 2 Thompson on Negligence, secs. 5, 974-5.
Whether it was prudent or rash for the plaintiff, under all the circumstances, to have jumped from the
V. There is no force in the objection that the instructions in their entirety were too ambiguous and general to point out the issues the jury were called upon to try. On the contrary they were so clear and explicit in their enunciation that there was left neither opportunity nor occasion on the part of the jury to mistake their duty.
We are unable to discover any ground upon which we would be justified in disturbing the judgment, which must, therefore, be affirmed.