116 Mo. App. 655 | Mo. Ct. App. | 1906
(after stating the facts). —
“3. The court instructs the jury that if you believe from the evidence that on the twenty-first day of January, A. D., 1904, the plaintiff was being conveyed as a passenger on one of the cars of the St. Louis Transit Company to the World’s Fair Grounds and that while said car carrying the plaintiff was crossing the tracks of the defendant St. Louis, Kansas City & Colorado' Railroad Company on DeBallivierre avenue in the city of St. Louis, it was struck by and collided with a car of said St. Louis, Kansas City & Colorado Railroad Company and that as a direct result of said striking and collision the plaintiff was injured and if you further believe from the evidence that said collision and injury to the plaintiff was directly caused in whole or in part by the failure'of the defendant St. Louis, Kansas City & Colorado Railroad Company, its agents and employees to exercise ordinary care in operating its railroad and cars at said time and place, then you will find your verdict for the plaintiff and against the defendant St. Louis Kansas City & Colorado Railroad Company.”
The court gave the following instruction defining ordinary care:
“4. What constitutes ordinary care as mentioned in these instructions depends on the facts of each particular case. It is such care as a person of ordinaryprudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the St. Louis, Kansas City and Colorado Railroad Company and its employees in this case, with
Plaintiff contends that this instruction defining ordinary care should he read in connection with No. 3 (quoted) above, and when read together, they properly instructed the jury in respect to the issue of defendants’ negligence. The instructions are as broad as the petition and no broader. But while a general allegation of negligence, unobjected to, is sufficient to entitle a plaintiff to proceed to make out his case, yet when it comes to instructing the jury, the instructions should call their attention to the particular acts or omissions, shown by the evidence, and which, under the law, constitutes negligence. Now, the plaintiff, to show negligence on the part of the defendant railroad company, relied on the ordinance and its violation by the omission of the railroad company to have a man stationed on the back of the train that collided with the street car, and their failure to ring a bell as 'the train backed. As contended by the defendant railroad company, the instruction utterly failed to direct the attention of the jury to the facts which, if proven, constituted negligence on its part.
In Sommers v. St. Louis Transit Company, 108 Mo. App. 319, 83 S. W. 268, the petition alleged general negligence. The evidence tended to prove specific acts of negligence. The instruction defining negligence was general. Goode, J., condemning the instruction and reversing the judgment, at pages 323-4, said:
“The evidence left room for only three grounds of recovery at most, to-wit; running the car at an excessive speed, failing to sound the bell as it approached the intersection of the streets and failure on the part of the motorman to use due efforts to stop the car after he discovered the respondent’s danger. The evidence possibly tended to prove each of those definite acts of negligence and thereby to support the respondent’s cause of action;
We think the instruction is clearly erroneous and calls for a reversal of the judgment.
“5. The court instructs the jury that if they find from the evidence that after the train and cars operated by the defendant St. Louis, Kansas City & Colorado Railroad Company had commenced backing from the west toward DeBallivierre avenue along which the tracks of the St. Louis Transit Company were laid, the servants and agents of the defendant St. Louis Transit Company caused its car mentioned in the evidence to undertake to
“10. The court instructs the jury that it was the duty of the defendant St. Louis Transit Company to bring its cars to a full stop at least ten and not more than twenty feet before reaching the tracks of the defendant St. Louis, Kansas City & Colorado Railroad •Company and to cause its conductor or some other employee of said company to go forward to the tracks of said railroad company for the purpose of ascertaining whether a train was approaching the crossing of said tracks and the failure if any so to do would be negligence, and if you find that the transit company failed so to do and such failure contributed to cause the plaintiff’s injuries, if any, then said St. Louis Transit Company is liable to the plaintiff in this action.”
“12. The court instructs the jury that if they find from the evidence that the person mentioned in the evidence as the watchman, L. W. Moss, was the employee of the Wabash Railroad Company and that the defendant, the St. Louis, Kansas City & Colorado Railroad Company had no control over the actions of said Moss, then the said defendant, St. Louis, Kansas City & Colorado Railroad Company, is not to be held liable in this action by reason of any negligence or carelessness of said
And the transit company also assigns as error the refusal of the court to give the following instruction asked by it:
“4. The court instructs the jury that although they may find from the evidence that at the time and under the circumstances immediately preceding the collision mentioned in the testimony the said defendant the St. Louis Transit Company was in some respects negligent, nevertheless, if you further find that after the act or acts of negligence which you may find from the evidence to have been committed that the defendant the Colorado Railroad Company through its employees was guilty of negligence and that such negligence of the said defendant Colorado Railroad Company was subsequent to the act or acts of the negligence that you may find against the defendant the St. Louis Transit Company and that such subsequent negligence of the defendant Colorado Railroad Company was the direct and proximate cause of the plaintiff’s alleged injuries then the defendant the St. Louis Transit Company is not liable to plaintiff and your verdict must be in favor of said defendant the St. Louis Transit Company.”
Instruction No; 5 furnishes no just ground for complaint on the part of the transit company. It does not tell the jury that if they find the facts as herein recited, they should find against the transit company; it only says that they shall not find against the defendant railroad company. But the instruction is erroneous for the reason it ignores the evidence, that it was the duty of the railroad company to ring its bell as it backed its train, and to have a man on the end of the train, and was prejudicial to the plaintiff.
“6a. The court instructs the jury that although they may find from the evidence that at the time and under the circumstances immediately preceding the collision mentioned in the testimony, the said defendant St. Louis, Kansas City & Colorado Railroad Company was in some respects negligent, nevertheless if they further find that such negligence did not contribute directly to the injuries, and that after the act, or acts of negligence which you may find from the evidence to have been committed by that defendant, the defendant St. Louis Transit Company, through its employees was guilty of negligence and that such negligence of the said defendant St. Louis Transit Company was subsequent to the act or acts of the negligence that you may find against the defendant the St. Louis, Kansas City & Colorado Railroad Com
If instruction No. 6a, given in bebalf of tbe railroad company is good law, then the refused instruction No. 4, asked by tbe transit company should have been given, for tbe latter is a counterpart of tbe instruction given in bebalf of tbe railroad company. Plaintiff, however, criticises tbe instruction given, on tbe ground that it did not make it clear to tbe jury that they were to find that tbe negligence of tbe transit company was tbe sole, direct and proximate cause of tbe injury.
In Montgomery v. Railway, 181 Mo. l. c. 513, 79 S. W. 938, tbe Supreme Court, speaking of tbe use of tbe phrase, “proximate cause,” in an instruction, said that it was more likely to mystify tbe jury than to assist them in reaching a conclusion.
In Clarke v. Kitchen, 52 Mo. l. c. 317, and Prince & Co. v. St. Louis Cotton Compress Co., 112 Mo. App. 49, 86 S. W. l. c. 878 tbe use of technical legal terms in instructions, without explanation, was condemned.
For tbe reason “proximate cause,” in tbe above instructions, was not explained to tbe jury, we think both should have been refused, and we seriously doubt if tbe evidence warranted tbe giving of correct instructions on this feature of tbe case for either party.