Meyer v. Pacific Railroad

40 Mo. 151 | Mo. | 1867

Wagner, Judge,

delivered the opinion of the court.

There are two grounds ui’ged in this court for a reversal of the judgment: first, that there is not sufficient evidence to support the verdict; and secondly, the court improperly instructed the jury for the respondent. The doctrine‘is so well established that it is hardly necessary to repeat it, that this court will not disturb a verdict because it is against the weight of evidence.

Where there is a complete and total failure of evidence, and it has no tendency to prove the issue, the court will be warranted in determining the whole case as a question of law; but where there is any evidence conducing to support the issue, or prove the allegations made by the pleadings, it is for the jury to say what weight shall be attached to it. It must be apparent at first blush that the jury have been actuated by prejudice or misconduct, and that their finding is wholly unsupported by the facts in the case, before we have liberty or authority to interfere. This doctrine is so firmly embedded in our jurisprudence, that to hold otherwise would be judicial usurpation, and the unsettling of well established principles. The constitution and laws of the country have imposed upon juries peculiar duties, and, unless they grossly abuse their trust, this tribunal is not to invade their province and revise their work. Their opportunities for judging- of the capacity, integrity and credibility of witnesses by seeing them face to face, and observing the manner of giving their testimony, make them possess advantages which we are deprived of. There is not such an absolute failure or want of evidence in this case as would justify us in interposing for that, reason.

The second instruction given for the respondent tells the jury, that if they believe the conductor was about to put Meyer off the car, it was his duty first to stop the train before attempting to do so ; and as all the evidence shows that when the supposed attempt was made the train was not stopped, it was equivalent to withdrawing the whole question of negligence from the jury, and instructing them to find for the respondent. From the evidence, it appears that the train was just starting, and going at a remarkably slow rate of speed; and if an attempt was made to put Meyer off, it was a fact that should have been submitted whether it was done negligently, or in a way to endanger life. To attempt to put a person off of a train when it is under full headway, or in the night at a dangerous place, would unquestionably be deemed gross carelessness and highly improper conduct, and a court would be fully warranted in so declaring it; while expelling a man when the cars were scarcely in perceptible motion might be devoid of all hazard and without any negligence. Therefore it is a question for the jury to determine, with a full view of all the circumstances as shown by the facts, and the court cannot single out an isolated fact and instruct that it amounts to negligence as matter of law.

All the instructions asked by defendant were given except one, which will presently be notieed, and no complaint is alleged against them. The first one given for the appellant is not liable to any objection so far as we can see. After the regular series were given on both sides, the defendant asked the court to instruct, that

6. If the jury believe that at the time deceased received the injuries complained of he was so intoxicated as to be unable to exercise the care and prudence ordinarily exercised by prudent and sober men while travelling upon railroads, and that such inability on his part contributed to c-aue the injuries aforesaid, plaintiff cannot recover.

The court refused to give it in that shape, but intp.Tb'np.fl it, and then gave it, making it read, that

6. If the jury believe that at the time deceased received the injuries complained of he was so intoxicated as to be unable to exercise, and did not exercise, the care and prudence ordinarily exercised by prudent and sober men while travel-ling upon railroads, and that such inability and want of care on his part directly contributed to cause the injuries aforesaid, plaintiff cannot recover.

To this action of the court in making the interlineation the plaintiff excepted.

Parties have the right to present such instructions as they see proper, and it is the duty of the court to either give or refuse them, without making any alteration or modification whatever. It is the privilege of the party to stand or fall by his own proposition, in the shape he has chosen to offer it ; and if the court dissents from it, it has but one course of action to pursue, and that is to refuse it without qualification. The conduct of the court, therefore, in this case must be regarded as a refusal to give defendant’s instruction ; and the giving of the one in its modified form as o£ its motion.

In our opinion, the court stated the law correctly. Unless Meyer’s irytoxication directly contributed to cause the injury, and in consequence thereof he did not exercise ordinary care and prudence, we do not see how it should be made to operate to the detriment of the plaintiff. The very proposition is monstrous, that because a man is drunk, although that is not the proximate cause of the injury, he is therefore placed beyond the pale of legal protection and may be killed with impunity.

The second instruction given for the plaintiff is erroneous, and on that account the judgment is reversed and the cause remanded.

The otherjudg.es concur.

Judge Holmes concurs in reversing the judgment, but not in all the reasonings of the court.