111 Mo. App. 67 | Mo. Ct. App. | 1904
(after stating the facts). —
“1. The court instructs the jury that if they believe from all the evidence that the agents or servants of the defendant company at the time of the injuries to plaintiff, carelessly and negligently ran said car upon plaintiff’s team, and that, by the exercise of ordinary care, they could have avoided doing so, and that such negligence was the cause of the injuries to plaintiff, they should find for the plaintiff, unless you find from the evidence that plaintiff himself was guilty of neg*76 ligenee which, directly contributed to his injury, as explained in other instructions.
“2. The court instructs the jury that if they believe from the evidence that plaintiff was driving on Fourth street of the city of St. Louis, on the fifteenth day of August, 1903, and that while he was crossing the tracks of the defendant plaintiff’s vehicle was struck by a car operated by the defendant as the direct result of the failure of the agents of the defendant to use ordinary care in stopping the said car upon the first appearance of danger to the said plaintiff, whereby plaintiff was injured, then they should find in favor of the plaintiff, and against the defendant, unless the plaintiff was guilty of negligence which directly contributed to his injury, as explained in other instructions.”
The contention is that the instruction did not submit to the jury either on,e of the ten specific allegations of negligence contained in the petition. Thé petition averred ten specific acts of negligence. The instruction was not confined to any one or all of the acts alleged, but stepped outside the allegations of the petition and allowed the jury to find for plaintiff, if they found from the evidence that defendant was negligent in any matter whatever. This was palpable error. [Allen v. St. Louis Transit Company, — Mo. App. —, 81 S. W. 1142; Sommers v. St. Louis Transit Company, 108 Mo. App. 319, 83 S. W. 268, decided at this term.']
On the oral argument much stress was laid by defendant’s counsel on sections 1775 and 1776, of the ordinance offered in evidence by defendant, and it was strenuously insisted that plaintiff had violated section 1776 by turning off of the east track on to the west one and driving north thereon in a direction opposite to the one in which the cars were running. We have failed to discover any such evidence in the record. Plaintiff’s evidence shows that he turned his team to- the west and drove “catacornered” across the west track, not north on it; and the defendant’s evidence is that he turned and was driving across, not along, the track when struck by the car.
“Before the plaintiff can recover in this action, it is not only necessary that nine or more of your number shall agree to find in his favor, but it is also necessary that the nine or more of you so agreeing shall all concur in finding the existence of at least one of the specific grounds of negligence submitted for your determination.”
A like -instruction was-asked in the case of Holden v. Railroad, 108 Mo. App. 665, 81 S. W. 133, decided at this term, in which we held it was not error to refuse an instruction like this one. We adhere to that opinion.
For error in instructions for plaintiff, the judgment is reversed and the cause remanded.