65 Mo. 34 | Mo. | 1877
Appellant’s attorney files an argument on a motion for rehearing, which, although able and plausible, has failed to convince ns that the case has been improperly decided.
The errors assigned are :
First—That under the issues made by the pleadings and testimony, the Court refused to instruct the jury that plaintiff’s right to be where he was when injured, affected the question of defendant’s liability under the facts and circumstances of the ease; and Second—That the Court below erred in instructing the jury upon its .own motion, and especially upon the question of plaintiffs contributory negligence.
In commenting on the case of Gillis v. Penn. R. R., 59 Penn. St. 129, there was no purpose to reflect upon the distinguished judge who prepared the opinion in that case, of whose eminent ability, everywhere acknowledged, we have the highest appreciation. We find no fault with the case, but on the contrary think it was properly decided. The counsel for appellant complains that we quoted and italicised but one line of the opinion. We did this because it is that one line which, applied to the case at bar, asserts.
The objection to the instructions of the Court, in regard to contributory negligence, is not tenable. The instructions clearly state the law on that subject. If the plaintiff makes out a case of negligence against the company, it then devolves upon the company to show that plaintiff’s negligence contributed to the injury. lie must show negligence in the. company, but is not bound in the first instance to prove himself not guilty of negligence contributing to the injury sustained.
Motion overruled.
Overruled.