McDonnell v. Columbia Taxicab Co.

168 Mo. App. 351 | Mo. Ct. App. | 1912

CAULFIELD, J.

(after stating the facts).- — The defendant 'contends that the giving of plaintiff’s instruction No. 1, was reversible error, and we are constrained to hold such contention good. Though in his petition plaintiff relies on specific acts of negligence to entitle him to recover, this instruction omits to hypothesize the facts with respect to the alleged negligence of the driver of the taxicab, and leaves the jury to find for the plaintiff if they find “that said driver of said taxicab at said time was not using the highest degree of care that a very careful person would use under like or similar circumstances, in running said taxicab.” It is true that, in the prior part of the instruction, the question of the speed of the automobile is specifically submitted to the jury, but the portion we are considering is stated in the alternative, to the end that, even though the jury might have found the driver guiltless in the matter of unlawful or negligent speed, it might still find for plaintiff, if the driver failed in any manner whatever to use the highest degree of care in running the taxicab. As the Supreme Court said in condemning a similar instruction, this one was “equivalent to authorizing the jury to return a verdict for the plaintiff under any theory of negligence which they could construct or evolve out of their own minds.” [Allen v. St. Louis Transit Co., 183 Mo. 411, 432, 81 S. W. 1142.] In this respect the giving of this instruction constituted reversible error. Where, as here, specific acts of negligence are relied upon, the instructions should require the jury to find whether the defendant was guilty in the respect charged and not submit the question in such general terms. [See Miller v. United Railways Co., 155 Mo. App. 528, 134 S. W. 1045.]

Another objection made to this instruction is, that it in effect declares the defendant guilty of negligence as matter of law if the automobile was going at “a greater rate of speed than eight miles an hour,” without requiring a finding that the place was in the “business portion” of the city as the statute invoked contemplates ' (R. S. Mo. 1909', sec. 8519), or that that rate of speed was negligent under the circumstances. As the judgment must be reversed and a new trial had for the reason first above mentioned, we need not pass upon this second objection, which is one that can easily be avoided upon a retrial. For the same reason we do not now notice other matters of alleged error.

The judgment is reversed and the cause remanded.

Reynolds, P. J., and Nortoni, J., concur.