Dando v. Home Telephone Co.

140 Mo. App. 511 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts).— It is utterly impossible to determine with any certainty wbat instructions were given and refused and-at whose request instructions were given. In the abstract prepared by counsel for defendant, instructions numbered, 1, 2, 3, 4, 5, 6, 7, 8, 12, 13, 14, 15 and 16, are embodied as instructions which were asked by the defendant and which were refused, and to which refusal exception was saved. It is set out that instructions numbered 9, 17 and 18, which were requested by defendant, were given. There appears to be but one instruction given to which exception was taken and that is noted in the abstract as having been given by the court of its own motion. In the supplemental or additional abstract, submitted by counsel for plaintiff, six instructions are set out which it is claimed were marked “given” by the court, but omitted by defendant in preparing the abstract of the record. We are not advised by the abstract or the supplemental abstract as to the party at whose instance these instructions were asked. The instructions which are set out by plaintiff in the additional abstract, in substance, declare the defendant is not an insurer of the lives of persons in its employ nor required to furnish absolutely safe appliances nor the most approved appliances. “Reasonable care” is defined and an instruction is noted as having been given which declares that it devolves upon plaintiffs to prove the facts hereinbe-fore predicated for recovery “by a preponderance or greater weight of the evidence and unless they have here so done, your verdict will be for the defendant. The mere fact that the rope broke is not to be considered by you as evidence of negligence on the part of the defendant, and also if the death was the result of an accident not reasonably liable to be foreseen by reasonable care then your verdict should be for defendant.” In, another of these instructions, which we are told in the additional abstract was given, the jury were told that it was the duty of the deceased to be reasonably careful for his own safety and to employ all of his senses to that end, hut that in the absence of an obvious defect and known danger he had a right to assume that the appliance furnished him was reasonably safe for the purpose for which he was expected to use it. On the other hand it was the duty of the defendant to use reasonable care in the selection of appliances and while in use to continue such reasonable care by reasonable precaution so as to maintain such appliances in a reasonably safe condition for use by its employees. Another instruction of those marked “given,” is that if plaintiffs’ son was leaning against the rope when it broke, and if such conduct on his part was- obviously unsafe and dangerous and caused the rope to break, then plaintiffs are not entitled to recover; and the final one claimed to have been given is on the measure of damages, but is word for word instruction marked No. 18, given by the court at the request of the defendant. This case was here before on an appeal and reversed for error in the instruction concerning the measure of damages. It is reported 126 Mo. App., page 242. The instruction as to the measure of damages, given at this last trial, whoever asked it, is correct; but as will be noticed, it is impossible for us to tell whether the instructions contained in the additional abstract submitted by counsel for plaintiff were given at the instance of plaintiff or defendant, and we are not informed whether exceptions were taken by either party to them. It is set out as an assignment of error in the case, that there was no evidence whatever that justified the case to go to the jury, particularly no evidence that defendant did not fully perform its duty in testing the rope, and it is argued that the mere fact that the rope broke is not evidence of negligence in this regard. It will be noticed that one of the instructions set out by defendant’s counsel as having been given specifically covers this proposition in the most favorable light possible for the defendant, the jury being told in so many words that the mere fact that the rope broke was not to be considered by them as evidence of negligence on the part of defendant.

The second point of argument on which authorities are cited is on contributory negligence, it being averred or assigned as a ground for reversal, that the jury were not instructed upon that issue. One of these instructions which is set out in the additional abstract specifically and correctly covers the doctrine of contributory negligence.

The third proposition or point made by the learned counsel for defendant is that the court refused all instructions requested by defendant as to burthen of proof, contributory negligence and unavoidable accident, and gave no equivalent instructions. This assignment is clearly and unmistakably disproved by the instructions, which, we are told by the additional states ments, were given. Beyond the general statement or assignment that there is no evidence to sustain the verdict, this covers all the assignments of error contained in the very elaborate briefs and arguments submitted by counsel for the defendant. In this state of the record before us we find no reversible error; there is ample evidence to sustain the finding; the verdict does not appear excessive, the measure of damages, as we before stated, is correctly announced, and we cannot say that the jury misconceived the direction of the court in its award. Finding no reversible error in the condition that the abstract of the record places this case before us, the judgment of the circuit court is affirmed.

All concur.