45 Mo. 137 | Mo. | 1869
delivered tbe opinion of tbe court.
When tbis case was before tbis court on a previous occasion the judgment was reversed because the Circuit Court, upon tbe trial, undertook to single out a certain fact, and instruct tbe jury that it amounted to negligence, without regard to other facts and circumstances. (See Meyer v. Pacific R.R. Co., 40 Mo. 151)
Upon a re-trial tbe whole question of negligence on tbe part of tbe employees of tbe defendant, and contributory negligence on tbe part of tbe deceased, was submitted to tbe jury. Tbe evidence was conflicting, but it is not for tbis court to say that tbe jury erred. It was for them to compare and judge of its
It is insisted, however, that the court erred in refusing certain instructions asked for by the defendant. But in this view we do not concur. The instructions previously given fully covered the whole case, and there was no necessity for additional ones. Besides, the instructions refused, except what was comprehended in the previous ones, were wrong in themselves. They singled out certain specific acts, and asked the court to say, as matter of law, that if these acts were established there could be no recovery. This court has so often held that such a course of practice is not permissible, that it is unnecessary to further pursue the subject.
Judgment affirmed.