26 Mo. App. 156 | Mo. Ct. App. | 1887
This was an action for personal injuries.
The court gave two instructions for plaintiff. The first instruction was as follows :
“1. The jury are instructed that, if they believe, from the evidence, that the defendant, through the negligence or carelessness of its agents, and without negligence on the part of plaintiff, inflicted upon the plaintiff' the injuries mentioned in the petition, they will find for the plaintiff, and assess his damages at such sum as they may think he is entitled to, not to exceed the sum iff' three thousand dollars, the sum claimed in the petition.”
Instructions should tell the jury what the issues are. Cocker v. Cocker, 2 Mo. App. 451; Butcher v. Death & Teasdale, 15 Mo. 271. The instructions should limit the issues to those made by the pleadings. Hassett et al. v. Rust et al., 64 Mo. 325; Abbott v. Railroad, 83 Mo. 271, The above instruction was faulty in this, that, instead of' confining the issues, as to the defendant’s carelessness and negligence, to the carelessness and negligence alleged in the petition, it submitted the issue in such broad, general and unqualified terms as to refer to, and include, any carelessness or negligence whatever, on the part of the defendant’s agents, whether alleged in the petition or not. The instruction should, in plain terms, have stated the acts of negligence on the part of the defendant, alleged in the petition, and in proof, which it was necessary for them to find, from the evidence, in order to find a verdict against the defendant.
This fault in the instruction was not cured by the instruction submitting to the jury the question as to whether the carelessness or negligence, mentioned in the instruction, caused the injuries mentioned in the petition. ■ 8
The second instruction given for the plaintiff was as follows:
“2. The court instructs the jury that, if they find for the plaintiff, they should, in estimating the amount*161 of damages, take into consideration the age and situation of tke plaintiff, his bodily suffering and mental anguish resulting from the injury received, and the extent to which he was disabled from making a support for himself by reason of the injury received, as shown by the evidence in the case.'1'’
There was no evidence whatever of the age or the situation in life of the plaintiff.
Instructions should not be given when there is no evidence on which to predicate them. Hinds v. City of Marshall, 22 Mo. App. 208. The instruction given in that case told the jury that, in estimating the damages, they should take into consideration the age and condition in life of the plaintiff. The instruction was held objectionable for the reason that there was no evidence of. the age or the condition in life of the plaintiff.
The instruction in the present case differs from the instruction in that case in this only, that the instruction in this case uses the word “situation,” unqualified by any explanatory words, instead of the words, “condition in life,” and restricts the jury to such damages as are shown by the evidence.
The difference is not in favor of the instruction here ; if the difference is of any effect, it is rather against the instruction in the present case. We supply the words, “in life,” in connection with the word, “ situation,” in order to give to the latter word a meaning ; and the restrictive words, “as shown by the evidence,” although unnecessary to explain to the jury that they were bound by the evidence, being expressly used, simply make more glaring the error of the court in telling the jury to consider that of which there was no evidence whatever. The suggestion, by plaintiff ’s_ counsel, that the plaintiff testified as a witness, that he was thus seen by the jury, and that they could have determined his age from this inspection of him, was fully considered in Hinds v. City of Marshall (supra).
The judgment is reversed and the cause is remanded.