124 Mo. App. 445 | Mo. Ct. App. | 1907
(after stating the facts.) — 1. Defendants contend that the court erred in refusing to instruct the jury on the theory of plaintiff’s case, and on what ground he was entitled to recover. Section 748, Revised Statutes 1899, provides: “When the evidence is concluded, and before the case is argued or submitted, . . . . either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused. The court may of its own motion give like instructions,” etc. In Eagle Construction Company v. Railroad, 71 Mo. App. 626, the plaintiff only asked an instruction as to the measure of damages. On appeal it was contended that plaintiff, by other instructions, should have presented all the issues made by the pleadings. This court, through Bond, J., at pages 629-30, said: “This view is erroneous. On the trial of civil cases the court is not required to instruct the jury except upon the request of the parties. As the plaintiff asked for no other instructions than the one given the court was not obliged to