248 Mo. 663 | Mo. | 1913
Lead Opinion
OPINION.
L
(after stating the facts as above).— The only question presented for review is the correctness of the instruction set out in the foregoing statement. Appellant insists that there were two issues which arose on its answer resting on matters m pais, and touching which oral testimony was adduced; that these issues should have been submitted. This contention is made on the theory that its answer denied the allegations of the petition, that plaintiff was the wife of the deceased, and that the collision was
Testing defendant’s answer by this rule, it will be seen that the effect of its express admissions and the want of a general or specific denial were sufficient to establish plaintiff’s prima-facie right to a recovery, and that the instruction under review was proper unless it contained reversible error in some other respect, than the failure to submit to the jury the question as to whether plaintiff was the wife of the deceased, or whether the collision of defendant’s trains was negligent.
II.
The defendant claims the instruction was erroneous as to the measure of damages, in that it told the jury they must find not less than $2000. We think there was no error in this.' First, because the negligent failure of defendant’s servants to cause the running orders of its trains to be observed was a negligence of the kind referred to in section 5425, Revised Statutes 1909; and the measure of damages specified in that section was properly stated in the instruction. Secondly, but if the cause of action had been one under the succeeding sections of the statute (sections 5426-7), still there was no reversible error in the present instruction, for the reason that defendant by its instruction numbered 6 (refused by the court) asked the court to submit to the jury that $2000 was the proper verdict unless they should believe plaintiff would have received more from her husband in “ money or support” had he not been killed. This action of defend
The judgment in this case is affirmed.
Concurrence Opinion
OPINION CONCURRING IN RESULT.
Error to be reversible on appeal must materially affect the merits or substantial rights of appellant. So the statutes ordain and so runs the good sense of the thing. All things, says Coke, are sustained or impugned either by reason or authority. The rule in regard to reversible error may -rest on either.
Quicked by such precepts it is plain that, on all the facts of this case, there was no reversible error in the instruction. This, because:
On the proof educed and admissions there was only one side to the case.. Observe the witnesses were uncontradicted and unimpeached by direct testimony or by the physics of the matter. Therefore, there could have been only one just .result, viz., that reached. Moreover, in ultimate legal effect liability was assumed to exist as a matter of law by both parties. I do not mean that defendant in so many words admitted liability, but what it did in its pleading accompanied by what it failed to do in its proof was tantamount to that. Hence, the technical error of directing a verdict in no way affected the merits. When only one result is possible and would be tolerated or allowed to stand by the court, as here, why in reason may the court not say so and have the matter over with? Under the peculiar facts of this record (and putting my concurrence on that sole ground) I concur