Lower v. Marceline Coal & Mining Co.

142 Mo. App. 351 | Mo. Ct. App. | 1910

JOHNSON, J.

Plaintiff, a miner employed by defendant, the owner of a coal mine, was injured by the fall of material from the roof of the mine. The cause of action pleaded in his petition is founded on specified negligence of defendant. The answer, in addition to a general denial, contains pleas of contributory negligence and assumed risk. Verdict and judgment were for plaintiff in the sum of one thousand dollars and the cause is here on the appeal of defendant. The errors assigned and argned by defendant relate entirely to tbe rulings of the court on the instructions. Defendant failed to preserve in his bill of exceptions any of the evidence adduced at the trial. He states in his abstract that “plaintiff introduced evidence tending to support the allegations of his petition,” and that “the defendant introduced evidence tending to support the allegations of the answer.” The abstract contains everything essential to a consideration of the case on appeal but the evidence. In such posture of the case, every presumption must be indulged in favor of the judgment and as far as the face of the record before us will permit, we must assume the evidence was favorable to the cause of action asserted and unfavorable to the defenses interposed.

The burden always is on the appellant to convince the appellate court not only that error was committed against him but that such error was prejudicial. An instruction may be erroneous considered only with respect to the issues made by the pleadings, but when considered in the light of all the evidence, its error may prove to be harmless and not of a character to justify the appellate court in disturbing the judgment. In the present case, though we find the instructions submitted to the jury the issues of assumed risk and contributory negligence, as issues of fact, we do not and cannot know but that the evidence of plaintiff on these issues was so strong and that of defendant so weak that the court would have been justified in holding and did hold in passing on the motion for a new trial, that on the whole record the verdict was for the right party. Defendant would take from us the opportunity of considering that possible phase of the evidence and would compel us to reverse and remand the case if we found error in the instructions which would be prejudicial in certain evidentiary aspects but not in others. We shall not consider such assignments of error.- The only errors in the instructions that would justify our interference with the judgment would be those of a harmful character so pronounced that they should be deemed prejudicial in any possible evidentiary situation. No such errors appear among- those assigned by defendant and it follows that the judgment must be affirmed.

All concur.