57 Mo. App. 308 | Mo. Ct. App. | 1894
— In May, 1893, the plaintiff was engaged on one of the defendant’s trains as railway postal clerk. While so employed the train, while near New Boston, Iowa, collided with another and plaintiff received serious injuries. He thereupon brought this action for damages. On a trial by jury in the circuit court plaintiff had. a verdict and judgment for $1,250, and defendant appealed.
The first and principal contention seems to be that the court committed reversible error in giving plaintiff’s instruction number 3 as to the measure of damages. It is claimed that said instruction assumes that the plaintiff’s injuries were permanent, and that he will continue in the future to suffer from his injuries etc., which, under the pleadings and evidence, are controverted facts.
I. The position of defendant’s counsel as to the law in such cases is correct. It is improper' for the trial court to so charge the jury as to declare the existence or non-existence of facts disputed and in issue in the cause. The settlement of controverted issues of fact rests with the jury, and the court improperly assumes that function when the judge by instructions states his conclusions in reference thereto.
But when' all the instructions given in this case are read together, as one charge, we do not feel the foregoing rule was seriously violated. While plaintiff’s number 3; considered alone, may be somewhat ambiguous, or even subject to just criticism, yet defendant’s instruction told the jury that the burden was cast on the plaintiff “to show by fair preponderance of the evidence to the satisfaction of the jury” the various elements that should go' to make up the sum of plaintiff’s damages. The court then did not assume the existence of these elements of permanency of injuries, future sufferings, etc., but told the jury that it was incumbent on the plaintiff to prove these by a “fair preponderance of the evidence.” More than this the amount of the verdict is such as to show that the jury gave little, if anything, for permanent injuries or future suffering. From a reading of this record it unques
II. As to the alleged improper remarks of plaintiff’s counsel at the argument, we discover no just cause of complaint. It may be well said that counsel on both sides approached the line of impropriety, but yet we feel that nothing said would justify a reversal of this judgment. However this may be, the record fails to show that defendant’s counsel saved exceptions to the action of the court.
III. Neither was there any error in permitting plaintiff’s father to testify as to the comparative appearance of the eyes of the injured man before and after the collision. The elder Sampson was not testifying as an expert, but the extent of his testimony was to advise the jury as to the effect, or rather the apparent change in appearance, the accident had produced on plaintiff’s eyes.
Finding no substantial error in the record the judgment will be affirmed.
