19 Mo. App. 302 | Mo. Ct. App. | 1885
This case, both as to the petition
The instructions given by the court on its motion quite fully covered all the material facts in issue, and very clearly and fairly presented all the questions of law involved. (Cases, supra). The court, with great propriety, might have refused all the other instructions asked. Such course, under like circumstances, would be the better practice. It is at once the wonder and the plague of the appellate courts that the trial judges do not pursue such course. The repetition of principles already laid down in one instruction, and the multiplication of declarations of law are but the fruitful source of inconsistency and confusion.
It may be conceded to appellant’s contention, that instructions eight and nine given defendant are hardly consistent with those given on motion of the court. But does'it follow that this entitles the appellant to a reversal? If the declarations given by the court properly declared the law, and those given on behalf of the defendant were not calculated to confuse nor mislead the jury to defendant’s hurt, or if those given the defendant conceded to it more than the law accords, it would be but harmless error, or one of which it would not lie in the mouth of the defendant to complain. Cooper v. Johnson, 81 Mo. 483; Morris v. R. R. Co., 79 Mo. 368; Wright v. McPike, 70 Mo. 175; Houx v. Batteen, 68 Mo. 179 ; State v. Hopper, 71 Mo. 425.
In Kenney v. R. R. Co., and Palmer v. R. R. Co., supra, it is expressly held, that the fact of the escape of fire from the passing train and the ignition of grass on the track make out a prima facie case for plaintiff, and entitle him to go to the jury. There was such proof by the plaintiff in this , case. This presumptive case the defendant may then rebut by proof,
We fail to find in the bill of exceptions one word of evidence tending to show that at the time and place in question the defendant either had in charge of its engine such competent and skilled servants, or that those in charge were at the time exercising skill and care. So the plaintiff was not only entitled to go to the jury on his prima facie case, but would have been entitled to an instruction advising the jury that defendant had offered no sufficient evidence to rebut it. And when the court, instead, went so far as to tell the jury in said instructions, numbered eight and nine, that there was no proof of negligence, etc., on the part of defendant’s servants, etc., it committed error in favor of defendant; and also committed error in its favor in submitting to the jury the question as to whether plaintiff’s prima facie case was rebutted.
The defendant cannot be heard to complain that the court accorded to it instructions which practically nullify some of those given by the court, where the latter are right, and the former are wrong. The defendant, in the matter complained of on this appeal, got more than the law authorizes at the trial, and its appeal is without merit.
The judgment of the circuit court is affirmed.
