46 Mo. App. 180 | Mo. Ct. App. | 1891
Plaintiff recovered a judgment for $2,500 against the defendant in the court below, on account of personal injuries inflicted at the crossing of defendant’s railroad on Indiana avenue, Kansas City, and defendant appealed. The charge of negligence made in the petition is, that defendant’s servants negligently and carelessly ran a switch engine over the plaintiff and her husband while they were crossing the tracks near the corner of Sixteenth street and Indiana avenue; that there was no bell rung or other warning given of the approach of the engine. In addition to a general denial the defendant set up contributory negligence on the part of plaintiff and her husband in going upon the' railroad track at the time.
I. The first point made in defendant’s brief is, that the circuit court should have sustained the demurrer to the évidence, because it is claimed a clear case of contributory negligence was made out. We have carefully read and considered the testimony, arid discover no reason to condemn the action of the trial court in this regard. The evidence for the plaintiff, if credited by the jury, made a case for her, and the court very properly refused to declare as a matter of law that she could not recover. The substance of the evidence tending to support plaintiff’s right to recover may be stated as follows: The plaintiff, Nellie E. Davis, just prior to the injury complained .of, was riding south on Indiana avenue in a one-horse buggy which was being driven by her husband. She sat on a bag of oats to the front of the buggy seat, with her face turned towards the southwest. The husband sat on the right-hand side of the seat, and a carpenter by the name of Inger on the left. As they approached the tracks of the defendant company, which were five in number and
We cannot undertake to set aside all this, and the other evidence on the part of the plaintiff, by a consideration of the photographs and experiments shown at the trial, however plausible they may seem. The photographs do not show, as testified to by Mrs. Davis (and not denied by any other witness), the condition of things as they existed at the date of the accident. They were taken about a year after Mrs. Davis’ injury. The testimony, too, of Quest and others was not based upon the condition of things as sworn to by plaintiff and Inger. They (Mrs. Davis and Inger) testified that the box cars, which obstructed their view, sat upon or at the line of the west sidewalk, and further they both agreed that their conveyance was driven along the extreme west side of Indiana avenue and right by the end of the box car, whilst it seems that Quest made his observations from the east side of the street, a difference in position likely of thirty to fifty feet. It is unnecessary to refer to the well-established rule that we should not reverse a case merely for the reason that the verdict is not altogether of our liking. We must defer to the jury in the first place, and then further must leave it to the trial judge to say if the preponderance is so strong against the verdict that it should not stand. We only interfere where the evidence, or the reasonable inferences therefrom, are all against the finding and judgment, or there is such an overwhelming preponderance against the verdict that it can only be accounted for on the ground of passion, partiality or prejudice. There is no such case presented here. The
Again, the court rightfully refused a peremptory instruction for defendant, because, admitting plaintiff to have heedlessly and carelessly gone upon the track in the path of the coming engine, there was evidence tending to prove that defendant’s servants operating the same could, by the exercise of ordinary care, have discovered the impending peril in time to have avoided the injury. According to the evidence for defendant the switch engine first went west, and in passing Indiana avenue the engineer saw plaintiff and her husband standing with the buggy beside the track facing south waiting to pass over ; the engine after passing west halted about fifty • feet west of Indiana avenue and thence moved back east, and then struck the buggy. In addition to the fact that the engineer was about ■crossing this thoroughfare where people so frequently traveled, the engineer had notice of the presence there, at the time, of the plaintiff’s conveyance, and the exercise of the least care would have suggested to the engineer a look-out for the conveyance. If Mrs. Davis and her husband drove from behind the standing box cars and onto the second track, when, as contended by defendant, they could have seen the switch engine fifty feet away (where it had come to a stop ) then it would seem those operating the engine might too have seen the buggy and occupants, and in ample time to have stopped the engine (or slowed up) so as to have avoided the ■collision. This is quite satisfactorily shown by the ■evidence for the defendant. Evidently, the engine was
II. Folio wing our last observations, it is appropriate-here to notice defendant’s third assignment of error. Objection is made to the following instruction given at the request of the plaintiff: “Even though you find and believe from the evidence that plaintiff was guilty of negligence in going upon the track of defendant, upon which the injury occurred, at the time and place of the accident, yet, if you further believe from the evidence that the place where such injury happened was a public crossing where the defendant’s tracks crossed a public street on grade in Kansas City, and that such crossing was in a populous part of the city and used by the public in traveling back and forth, and that defendant’s-servants in charge of the locomotive engine complained of saw, or by the exertion of ordinary care might have seen, the plaintiff and her husband upon the track in their buggy, in time to stop the said engine and avert the injury, and that such injury was caused by the carelessness and negligence of such servants in not so doing, then you must find for the plaintiff, notwithstanding negligence on her part or on the part' of her husband.” The italics above are those of defendant’s counsel. As to the first objection to this instruction (to-wit, the absence of any evidence to support it), we have already given our views, and think it unnecessary to say more. It is said, however, that the instruction is faulty in telling the jury that it was incumbent on defendant’s servants to stop the engine and avert the injury if they saw, or might by ordinary care have seen, the plaintiff and her husband upon the track in their buggy in time to stop, e.tc. It is claimed that before this could be required of defendant’s servants there must have been impending danger or peril in the presence of the buggy on the track. Whilst in other cases this criticism might have some weight, yet, admitting
III. Among the numerous instructions offered by the defendant was the following : “20. The instincts of self-preservation are not proper considerations in determining whether Mrs. Davis exercised ordinary care. ’ ’ The refusal of the court to give said instruction is assigned as error. Whether or not this instruction embodies good law, yet its refusal was not reversible error. The defendant offered twenty-one separate declarations of law, sixteen of which the court gave. These, with some three given at the plaintiff ’.s request, and two others of the court’s motion, submitted all the issues (and indeed others besides) which by any possibility are included in the limits of this case. This oft-repeated practice of crowding the records of the trial courts with a multitude of unnecessary instructions is a growing evil in the trial of causes in this state. It serves no good purpose, but only goes to embarrass the trial judge ; and if any great number of such instructions are given they tend to confuse rather than enlighten the jury. Here, for example, the issues to be determined by the jury were very few, so that two or three instructions to the side would answer every useful purpose. The court then was justified in refusing this, with the other four asked by defendant, because they, one and all, were entirely unnecessary in advising the jury as to their verdict. The instruction, numbered 20, was besides a mere abstraction, and clothed in such language as was calculated to mystify the jury. Furthermore, said instruction does not properly declare the law in this state as we understand it. Although I have
The remaining point presented relates to certain questions and answers of witnesses Inger and Hereford. Having examined these objections we fail to see any substantial reason for complaint. The case seems to have been fairly tried, and we discover no reason for reversing the judgment; the saméis, therefore, affirmed.