*1 (сid:127) jurisdictions foreign We have read and examined the from cases ac- by appellant point the cannot as cited on this but we in brief its cept the these cases appellant conclusions has drawn from that the apprehen- appellant other states. We think that if the had been might injuries plaintiff that the received jury sive consider the damages ease,, assessing in the accident, in automobile this then the in appellant easily prop- have an instruction that could would worded erly prior yet, not these jury have informed the to consider injuries, opinion could in have' by the instruction as offered defendant not our any injuries plaintiff had by reference whatever to the received was, clearly offered, the automobile it it acсident as was under record, given. this the law should not have been misstatement of given No. 10 proper jury Instruction was a direction the so against jury would not return verdict this defendant for the compensation plaintiff injuries full amount of the re- due for her plaintiff had ceived this accident since received $4000 on her claim. fail was We to see defendant harmed in the least give 9, refusal сourt to Instruction No. likewise we fail to appellant harmed giving see how of Instruction 10. No. Appellant complains Y. next about of the verdict. size jury in the first $20,000 against trial returned a verdict for both After, defendants. case was reversed remanded court, plaintiff received from company, $4000 railroad jury $12,000 at the second trial returned against present defendant. again Since case must be tried not do upon question feel called pass of excessiveness at this juries time. Two have heard juries the case and these have been each severely injured $4000 within of. other. Plaintiff was and un- here negligence der record she made clear case of against the In company. view defendant street car of these facts and in view necessity of a third trial we think question of the amount left to the at this time be verdict should sound discretion of the suggestions facts without from triers this court. For the noted this cause reversed and above remanded. errors It or- is so All concur. dered. Guy Thompson, Trustee of the Missour A. Pearrow
Tarlton Corporation, Appellant. Company, Pacific 121S. i (2d) W. 811. One, 1938. Division November *2 appellant. Thos. J. Cole for
C. O. Inman respondent. *4 HYDE, $10,000 damages C . This is an action for for рersonal .injuries. The jury Thereafter, found defendant. for the court sus- ground trial plaintiff’s tained motion for a new on the that certain request instructions, given defendant, at the of “were erroneous, prejudicial plaintiff.” misleading to the and .Defendant ap- has pealed this order. from any Defendant contends error is im instructions guilty of was because contributory negligence
materiаl as 494 a directed therefore, "defendant was entitled- to and, matter of law
a most eVidenee, considered by the the verdict. Ve‘ facts shown state n conten ruling ease, of this favorably purpose plaintiff’s for the to tion; string five cars by of that he struck a Plaintiff testified was a cross public "track at road crossing defendant’s switch he was while Ten Memphis, Deerfield, home was in Plaintiff’s ing at Arkansas. Illinois Cen the He a"switchman on" employed there nessee. was was unable In he farm land at- Deerfield. tral, but owned htd July high He begun of water. get until because planting to D. Steelman, (James Shelby Steelman, and A. Small- tenants three stayed Plaintiff farming on shares. and wood) living on his farm July August, some year during and farm that farmed on the only one switch had no of the land Deerfield station himself. gradеd sev ran track. The main line track north and and was south track, surrounding country. eight feet The switch en or above the loading logs, ran south from which for principally was used steep”) pretty down (“comes track embankment main line down the fields, and ended without connection level to the lower of the a road run public main line track. There was at south with main line track embankment which crossed the ning and west east point track at south of crossed switch south of switch and grade. south where the steepest part point its Just of loading loading track, for boom the switch there was road crossed paid and he dol plaintiff’s was on land logs cars. This one into logs logging contractor were by the for use. per car its lar morning, except "Sunday, Every cars. a loсal open into coal loaded empty set ears north freight pick up train cars and out would loaded crossing. loading boom, at were needed road As these of the uncoupled and allowed to run force they gravity be down could releasing brakes. Saturday injured he was about 5 o’clock on Plaintiff claimed that 19, 1933, August string empty of five of these afternoon, coal grade track, getting running down the loose and the switch cars him, dragging crossing while he was at striking public weighing pounds. crossing carrying harrow, small road morning put he corn been laid Plaintiff’s had gardening the east tracks where he afternoon on side of lived. quit day, he would that, Plaintiff decided he for before do some potatoes patch a small of sweet east side work in tracks-.. the west side Shelby went across railroad borrow He purpose. Plaintiff and mule first harrow Steelman’s hitched *5 dragged intended it harrow and to have to the across the the mule take it over track, easier to with the than “because it was mule it objected, saying: it.” Steelman “You are carry, was to liable to up.” tear it in the track and Plaintiff then catch the teeth decided
495’ agreed to сarry harrow back and Steelman .that lie would on his away:' Plaintiff yards potato patch, mule about lead the to the the frame mule, got the harrow on his-back with across unhitched the began stooped it his shoulders, up, carrying over'with teeth his due, that there was train but said that’he knew no head down. He 'line track certain that there stopped that he at the main and made coming he engine sight direction before train or either was- no He then on between the two crossed it. went tracks onto crossing looking again. he- within track without Just as was switch Steelman, Mm walking track behind with step or two of switch Steel- mulé, yelled; “Look out!” Plaintiff turned to look toward running grade. "clothing His man and was struck the cars down the journal dirt, caught by dragging box him into where pile was clothing on, loose, running his and the went á was torn cars into loading ear evidence partly loaded boom. Plaintiff’s was under an of the -that all the that examination- cars showed afterwards loose, indicating hanging brake down that of the chains were none hand brakes been set. had always supposed
Plaintiff testified set switching that crews “are brakes.” He hand said: “On being industry work, track that when cars are used bе, placed they supposed on and usually are, these tracks are made dirty, brakes, secure also air if those : . . rust pistons but are something getting them, it would hold those inside practically open enough however, they new, that air would off. 'are leak If they quite hours, will hold few are they but if not new them some of n thirty leak off in or an . . hour. . When air leaks minutes ’’. nothing except off there is them to hold the handbrakes.
Plaintiff had seen these five cars set out the local that morn- ing shortly log loading before noon. The that quit crew had work day Saturdays. at noon and left on this local their custom as was on Plaintiff’s evidence showed no been that one had around cars they since had been vicinity set out. He said he been had in the (from feet) 10 to 150 of these testimony ears all afternoon. The freight defendant’s local they crew that set the hand did brakes w¡¡ts all on of these ears. It Was admitted did cars run down and crossing occasion. block the Defendant’s on this version cor- by Shelby roborated Steelman and his father Steelman, James who sitting porch on said he was on his the west of the side tracks. De- fendant, however, had the evidence of Smallwood аnd his wife crossing vicinity plaintiff was not in the at the time. It was did run down shown cars and block the crossing also plaintiff time after claimed other to have occasions in- been “Q: jured on cross-examination testified: you Had before? Yes, sir, come down A. ever those cars to they known had *6 496 that,? Well, Q. A. once or twice
come down Yon knew before. n .before, I down had I never come they been told did. saw them that .got I that cars had. had been told on one or two occasions .loose .but down, . crossing.” blocked and come there before .and one who relies cases hold that Defendant “which a approaches track, on-coming an looking railroad can and see train, guilty contributory negligence of law if a matter he as goes upon City the track and ex Kansas Sоuth is struck.” rel. [State Shain, 1195, (2d) 915; see, ern Railroad Co. v. Mo. 105 W. 340 S. also, Chicago v. 297 249 Co., 633, & Alton Mo. Monroe 469; (Mo.), W. 257 237 644, S. S. W. State ex rel. Bland Hines v. Co., 493, 1018; S. W. Evans v. 289 Mo. 233 Illinois Central Railroad 397; Kelsay Co., 362, S. W. 30 v. Mo. 129 Mo. S. W. Pac. Railroad 339; Hayden M., Co., 566, 28 v. K. & T. Railroad 124 Mo. S. W. 74.] track, citing Plaintiff that says applies rule to switch same 987, (Mo. App.), Henderson St. L.-S. F. Railroad Co. 248 W. S. Mo. 414, However, 314 284 788. have affirmed S. W. here a dif we of switch ferent kind track from one in the considered Hender Hines, in son case Morrow v. 233 S. therein. 493, or W. cited This track connected with line only was the main the north end. -at high main track the surrounding* country plain line was and above engine tiff and could did see that was there no train or on either track none come. Plaintiff knew five coal did that had cars stationary been on the track for five or six hours. He switch had crossing only passed over below them minutes a few before on way get his Steelman’s and harrow. to mule -If consider evi dence plaintiff, most favorable to it is at least inference reasonable that they moving were not .he when looked and down track up crossing before the main though plaintiff line. -Even had heard “that, or occasions, on one (set got two cars switch) out on the had before,” loose and come down there ques it would be a jury least at tion, if saw them stationary, he as to have whether he should antici pated they might get loose and rolling start between the time he walked from the main line to switch track. We hold it proper for trial court was to neg submit the issue contributory ligence jury. to the be erroneous,
Instructions claimed to mislеading* prej are Numbers answer, udicial and 7. Defendant’s in addition to general denial, up set as contributory negligence defense on the ‘‘ part plaintiff, That follows: he saw or could have seen the car contact, any, with which he came if time, by the exercise of ordinary care on own part, his to have avoided contact therewith ’’ being injured. thus avoided requiring jury Instead of find the alleged, facts other plaintiff’s conduct, in order find a facts verdict for defendant defense, given the court only instruction basis .the 5, which plaintiff’s negligence Number submitting issue of , . was as follows: . injuries to evidence you “If find from the believe and negli- concurring mutual joint, were caused *7 defendant, gence negligence the plaintiff the and that of of negligence other, the the аs neither, without of of the concurrence instructions,' injuries, then in these would have caused defined such recover, to plaintiff entitled verdict must be your is not ' for defendant.” general instruction, together undefined of this with terms cryptic partisan, way proposition, might well have stating of misleading. caused the trial to that its effect court consider (Mo.), F. v. L.-S. Railroad Co. 284 W. Boland St. S. [See 141.] is, course, Contributory negligence an affirmative of defense with the burden of the defendant will show proof on establish facts which to Therefore, have, (general) it. case, defendant in such “cannot a negligence 533; 85 S. Moussette, instruction.” v. 337 Mo. [Watts instruction, W. (2d) 487, An a and cases on con plaintiff’s cited.] negligence, general” and tributory “is what is com too “amounts to monly roving termed “it a cоmmission” when fails to advise the jury point any way, part in out on the of what acts or omissions any, plaintiff, if found them from evidence .constitute would contributory negligence.” Lenz, 1113, v. 332 61 S. W. Mo. [Clason (2d) 727; Gottschick, 64, (2d) v. ; 329 Mo. 43 S. 777 Schide W. Krey Co., 108, 157; Bobos v. Packing 296 317 Mo. W. Owens v. S. McCleary, 213, 313 682; Mo. 281 S. Hanke (Mo.), W. v. Louis St. 272 933, cited; S. W. (Mo. and cases v. Lunsford Macon Produce App.), 260 S. W. say preju These authorities is this 781.] dicial plaintiff 'permits cоntributory because it the jury to find negligence against plaintiff any theory negligence “on which they could construct or evolve their They fur out of own minds.” ther giving general hold that the error in is not such instruction by plaintiff’s containing waived main requirement, instruction in addition finding to the facts favor, essential verdict in his to a for a to the plaintiff effect time exercising ordinary was at the care. (Or highеst degree cases.) care require in automobile Such a plaintiff’s ment in merely instruction informs to the de jury gree imposed plaintiff. of care on King Rieth, to waiver see v. [As 467, 341 (2d) Mo. 108 W. S. We follow the same rule as to 1.] necessity requiring defendant’s instruction finding when of facts interposed cause in defense sole is negligence humanitarian Moussette, cases. v. supra; Doherty Watts v. St. Louis Butter [See Co., (2d) 742; 339 996, Lynch, 82, Mo. 98 S. W. v. Dilallo 340 Mo. 498 (2d) 412, S. W. Meyers, 341 7; Mo. (2d) S. W. McGrath v.
792.] case, harm urged that, it was is, however, in this It further citing argued, It give general a too instruction. less error to Inde 1040, Riley v. (2d) (Mo.), 19 W. Murphy Duerbeck S. proof 671, that there was no 1022, 258 Mo. 167 S. W. pendence, except failure look negligent part of his plaintiff act track, jury that the had noth again stepping on so before the switch order, new granting a cоurt’s ing it to consider. The else before in trial, ground. place, In first be cannot reversed than the instruc general in its terms struction this case was more jury could argument (that Moreover, tions in cited. the eases propo only sustain evidence) consider what was in would also case error for to- submit sition that it is harmless at without the time any instructions. court did so 'hold This position, cited abovе cases were written but it has since reversed Co., banc, its decision en in Dorman v. East St. Louis Furthermore, say 335 Mo. 854. (2d) 75 S. W. cannot *8 negligence which possible theory this case that of there was-no other might jury. Perhaps might they been considered the have have experienced railroader, felt plaintiff, that an if care he had looked fully, hanging have seen the of and could brake chains the cars loose anticipated should moving by gravity. have their the of Plain force very tiff thoroughly propriety was also cross-examined toas the of getting of his method the the mule and harrow across the railroad. following directly, sug The inference, alternative methods were or gested That ahead; : Steelman could the have ridden mule that Steel- man could hаrrow; have assisted with the the harrow that could been fitted have and carried over on mule’s back plaintiff’s; well as that and plaintiff could ridden mule have holding the harrow. Plaintiff that very said the latter method “is not good policy,” agree with which we are inclined to without further explanation. only description mule, The of in record, found is that he an able-bodied farm mule. prove This does not that mule; pack he awas nor there any is evidence of essential differences between Missouri and Arkansas farm mules. injection
The of a any mule into usually presents situation peculiar complications. It is true that Judge Lamm, in a famous “ opinion, held that under the ‘mule jurisdiction” law’ in this a “per not mule is se nuisance.” [Lyman Dale, v. 262 353, Mo. 171 Although S. W. he that concluded the nature histоry and of 352.] ‘‘ animal cannot far so condemn him that he does not stand rectus curia,” frankly in he nevertheless admitted that “it has been inti in precepts mated fireside that the mule unexpected is in his heel faults,” action and has other and that “there are sporadic instances
499 badly.” in. a behaving We that of'mules note this was-tried case- - community, City Louis: We must great urban to-wit: -of-.’St: judicial pоpulous-'centers'the take that in such motors notice' roar of dynamos replaced pas the whir of turbines-have the more overlook, barnyard:,: -that sounds of We -cannot fact toral - require large -who- modern conditions dwell -in' cities- know those to object machinery pride, about than more former of State our may judge the Missouri mule. It learned trial be felt he was more familiar with traits and farm characteristics of mules -circumstances, jury, than ought his under the jury this' given not to a roving have been commission In mule in case. court’s, case, judgment defer to trial such should- as .to prejudicial power effect this instruction.- “The trial court grant judicial discretion, to new trial is an exercise of its which ;to may based.upon be in (often matters known the court said to be court) judge participated breast of the trial because the in the trial and knew what took place, which cannot preserved -much of be exceptions Martel, 53, bill of record. v. 332 Mo. 55 [Beer (2d) 482; W. Adoption, 237, S. In re Zartman’s 334 Mo. 65 S. W. (2d) Until 1018, of Section amendment Revised Statutes 951.] (Mo. 1018, 1929 Ann., p. 1285), 1891, Stat. 1891 (Laws sec. p. 70), provision review, by there was no appeal from action such trial court.” Herrmann, 1026, 340 Mo. 104 S. [Castorina (2d)W. 297; Co., 1049, v. Alton Arnold Mo. 124 W. S. (2d) 1092.]
Concerning Instructions complaint to which as- made of emphasizing proof over particularly burden as to equally balanced evidence and effect jury’s inability of the determine question therefrom the negligence what proximately plaintiff'to injured, caused be it only necessary say that this is. ais *9 usually matter judicial left to the discrеtion of the trial court. Defendant complete had one correct and instruction on the burden proof and another the credibility jus on (3 4), of witnesses. and tified sharp conflict testimony vital fact on issues and im peachment testimony. The question proper is whether it was give proof more burden of “Repetition two instructions. in or elab proposition oration on the sаme of law in different not instructions is ordinarily grounds sufficient for reversal and remanding a cause appeal,” upon but the situation is somewhat different where motion t.bia trial court sustains a for new trial the ground on misleading. prejudicially v. Co., Alton [Arnold supra.] where, here, more two instructions given, So were emphasiz both proposition ing defendant was entitled ato verdict in testimony credible equally sides, both event not do believe court interfering' with action of the trial justified be we would ground stated. granting new trial CC., Ferguson Bradley, concur. affirmed. order is Hyde, 0., adopted foregoing opinion by CURIAM: —The PER judges All concur. opinion of the court. as the Corporation Speed-O G. G. Ross Lillian Ross Bessie Corporation Speed-O of Mis Corporation, a Nevada Americа, Corporation Speed-O Mis America, Corporation, souri, Laboratory, Inc., Corporation, Corporation, souri Louis St. Olga McMurdy Deusen, D. P. Deusen, Van John H. Van S. (2d) Appellants. Fred A. Eppenberger, S. W. 865. —121 One, November Division 1938. Hopewell appellants. G. M. Barksdale and J.
Clarence respondents. Nations for Gus O. judgment appeal an
FERGUSON, is an from order C . This City appointing of St. Louis a receiver Circuit Court of of the *10 corporate and affairs of defendants. charge assets to take