Tetherow v. St. Joseph & Des Moines Railroad

| Mo. | Oct 15, 1888

Barclay, J.

— There was ample evidence for plaintiff tending to establish negligence on the part of defendant in failing to have a good and sufficient crossing (of the kind required by law, R. S. sec. 807) at the point where Tetherow was killed. There was also abundant evidence from which the jury might properly have found that deceased was negligent in the premises ; but the facts were not such as justify the court in declaring as matter of law that he was negligent. Without attempting any extended review of the evidence it may briefly be stated that in view of the heavy load deceased was hauling and of the condition and grade o f the street approaching the point of the accident and all the circumstances, it cannot justly be said that no inference but that of his negligence could be drawn from the fact that he did not change the direction of his team toward the east, after passing the bridge, and thus reach the plank crossing near the depot. His wagon struck the track within the limits of the traveled street and his omission to turn out as indicated may not have been inconsistent with ordinary care. The court cannot properly pronounce certain facts to constitute negligence as a conclusion of law unless no other inference may be fairly and reasonably drawn on the subject.

The evidence ofifere d to show the condition of the second track crossed by Tetherow before reaching the third ( where the injury took place) was admissible as part of. the description of the surroundings, as of the res gesta.

The defense was negligence on the part of deceased in handling his team and wagon and in other respects. It was hence proper to inform the jury of the condition, grade and general features of the street over which he drove just before reaching the point of injury.

There was evidence sufficient to support instruction number 1, given for plaintiff, and we regard it as correctly stating the law applicable here. Instruction number 7, defining negligence, was also sufficiently accurate. Ordinary care generally depends on the facts of the particular case. Except in those instances where the law (by express terms or otherwise) establishes some more exact rule, ordinary care is such as a person of ordinary prudence and caution, according to the standard of the usual and general experience of mankind, would exercise in the same situation and circumstances as those of the person whose conduct, in that regard, is in question in the given case.

There was no error in permitting the plaintiff to state the number and ages of her minor children. The father during his life (in the absence of any showing qualifying that liability) was bound to maintain the children. On his death and during her widowhood, at least, this liability was cast upon the mother according to the present law of Missouri, whatever may have been the rule at the common law, regardin g which great differences of opinion have been expressed. Furman v. Van Sise, 56 N.Y. 435" court="NY" date_filed="1874-05-26" href="https://app.midpage.ai/document/furman-v--van-sise-3626587?utm_source=webapp" opinion_id="3626587">56 N. Y. 435; Nightingale v. Withington, 15 Mass. *272; Guion v. Guion's Admir, 16 Mo. 48" court="Mo." date_filed="1852-03-15" href="https://app.midpage.ai/document/guion-v-guions-administrator-7998810?utm_source=webapp" opinion_id="7998810">16 Mo. 48; Reeve’s Dom. Rel. (Parker & Baldwin’s 3d Ed.); Schouler’s Dom. Rel., sec. 254. Hence it was proper to show the extent of this burden which the father’s death placed on the plaintiff.

The refusal of defendant’s instruction number 13 was not error. The instructions given at the instance of defendant submitted to the jury the whole question of the actions of the deceased in the premises (with reference to care or negligence) as an issue of fact. The court was therefore justified in declining to separately submit a group of the same facts involved in a form which assumed the issue arising therefrom to be one of law only. Without deciding upon the correctness of the refused instruction, we think the defendant was bound by the theory presented by the instructions given at its instance. The refusal of another, thus inconsistent therewith, was no error. When no question of public policy or express statute intervenes, parties are bound by the law as contained in the instructions they offer.

Defendant objects to the evidence given by the witness who said that since Tetherow’s death the place had been graded off. This fact was first developed on the re-direct examination of the witness. It was proper by way of explanation of the cross-examination, in the course of which the following questions were asked and answers given at the instance of defendant’s counsel:

“Q. Did you ever know of any other accident happening to anybody at this crossing ? A. No, sir.

“Q. Never heard of any other or knew of any other? A. No, sir.

“Q. Neither before nor since f A. No, sir.”

In view of this line of examination by defendant it became permissible for plaintiff to show that no injury had since occurred there because the place had been since repaired. Defendant is therefore not in position to complain of that ruling.

The instruction given by the court in regard to the measure of damages was correct as far as it went. Plaintiff was entitled (under our statute on the subject) to recover such damages as the jury might “deem just, with reference to the necessary injury resulting from¡ such death,” not exceeding five thousand dollars. R. S. sec. 2123.

If defendant’s counsel thought, as is now claimed, that there were circumstances mitigating the damages, that question should have been presented to the trial court by an instruction embodying that idea. This was not done. The court is not required in a civil action to instruct the jury on questions of law not suggested at the time by the parties or counsel.

The action of the trial court on the special issues furnishes no just ground of exception. Of those which the court refused to submit that numbered 3 was included in those submitted. Those numbered 10,12 and 16 (so far as not embraced in the questions answered) were immaterial and properly refused for that reason.

The law regarding these special findings contemplated only the submission of such issues as would have a material bearing on the result. It was not designed to require answers to questions concerning every detail of disputed evidence. When the proposed question might be answered affirmatively or negatively, without affecting the general verdict it should manifestly have been rejected. Many of the questions submitted in the present instance might have been properly refused. There was no inconsistency between the material findings and the general verdict.

The damages awarded (twenty-nine hundred dollars ) are not excessive in view of the regular earnings of the deceased, his age and the expectations of life of husband and wife respectively. The assignments of error are not well taken. The judgment is affirmed.

Sherwood, J., absent; the other judges concur.