55 Mo. App. 9 | Mo. Ct. App. | 1893
The plaintiff recovered a judgment'for $21.35 against the defendants for injuries to his vehicle and loss .of time, alleged to have been caused, by the defendants’ negligencein failing to place a red light, in the night time, on an excavation made by them in a street of the city of St. Louis, as required by the .ordinances of the city.
The defendants appeal, and assign for error that the court refused to sustain their demurrer to the evidence, and that the court further erred in giving to the juryin their absence and in absence of their counsel an oral instruction, the tenor of which was prejudicial to them.
The plaintiff, who is a hack driver, testified that on the night in question he was driving northwardly along Twenty-ninth street, and that while crossing Eranklin avenue he drove into an excavation made by the defendants, who were contractors with the city of St. Louis and were repairihg the street. There are railroad tracks running along Eranklin avenue, and this excavation was on the north side of the tracks and between them and the north curb of the street. The excavation was more than ten feet long and about eighteen inches deep. There was a driveway built along the intersection of Eranklin avenue and Twenty-ninth street, so that by keeping in the center of
“Every person, who shall cause to be made any excavation in or adjoining any public street, shall cause one red light to be securely and conspicuously posted on or near such excavation or obstruction, provided such obstruction does not extend more than ten feet in length, and, if over ten feet and less than fifty, two red lights, one at each end, and shall keep such lights burning during the entire night.”
The plaintiff was corroborated in his testimony by a passenger in his hack as to the rate of speed at which he was driviug, as to the accident, and as to the absence of any red light posted on or near such excavation.
The defendants claim that the court on this evidence should have sustained their demurrer to the evidence, because the inference was unavoidable, that plaintiff’s own negligencé contributed to the accident complained of. In that view we cannot concur. The plaintiff testified that he did not see the excavation, and this, in view of the fact that
After the submission of the cause to the jury, they deliberated for one day, and, being unable to agree, they were called into court and the judge in the absence of counsel said to them: “Gentlemen of the jury, I deem it my duty to say to you in this case that I consider the case a very simple one both on the law and on the facts, and one in which the jury ought to come to an agreement. The case does not involve a great deal of money, but it will entail a good deal of expense, not merely to the parties but also to the public, to have a failure of the jury to agree. Now, while I do not wish to compel any juror to give up his just and honest convictions in regard to the evidence in this case, I think it is the duty of the jurors to listen to each other, hear each other’s statements and arguments in regard to the matter, and to endeavor to come to an agreement m the case, so as to avoid the necessity of a new trial of a case that is so small. You may retire then, and consider of your verdict further in this case.”
The defendants claim that these remarks were prejudicial to them and constitute reversible error.
On the other hand we must not lose sight of the fact, that we are authorized to reverse judgments for prejudicial errors only. We have ourselves decided that the mere fact of the instruction being oral is no ground for setting aside a verdict, where the instruction is given in the presence of counsel and is one touching a conceded fact (Walsh v. St. Louis Drayage Co., 40 Mo. App. 339); but we have also decided that error is presumed to be prejudicial, and that to justify an appellate court in affirming a judgment where error has intervened in the trial, the burden is upon the party claiming the benefit of the judgment to satisfy the appellate court that the error was not prejudicial.
Now, it will be seen that it is next to impossible to uphold the verdict in this case under that decision. Here the instruction had the additional objection of being oral and of embodying two objectionable elements, namely, that the court considered the issues very simple both as to law and fact, and that the controversy was about a small amount. Both of these propositions are irrelevant to the merits of the case and yet may have influenced the jury in their decision, since the plaintiff was a hack driver of presumably limited means, and the defendants were contractors of presumably sufficient means not to feel so small an amount. Nor can we see our way to an affirmance of the judgment by treating the remarks of the court as purely cautionary, and as not an “instruction” in the technical sense of that .term. Cautionary remarks are addressed to the jury touching their conduct while considering the case, and not touching any elements to be weighed by them in itg consideration.
The judgment is reversed and the cause remanded.