108 Mo. App. 645 | Mo. Ct. App. | 1904
— Plaintiff sustained personal injuries consequent on a collision between the one-horse wagon, which he was driving under employment by
“There being several specified acts or items of negligence charged in the petition, it .is not only necessary that nine or more of your number shall agree to find in the plaintiff’s favor before he can recover, but it is also necessary that the nine or more of you so agreeing shall all concur as to at least one of the special acts or.items of negligence submitted for your determination. ’ ’
On this branch of the case the court, at instance of appellant, had charged thus:
“The plaintiff in his petition charges that the collision and injuries of which he complains were directly caused by the carelessness and negligence of defendant’s servants in charge of the car in the following particulars, to-wit:■
“1. In negligently managing the car.
“2. In failing to keep watch for vehicles on the track in front of said car.
“3. In failing to sound the bell, or in any other manner warning the plaintiff of the car’s approach.
“4. In failing to stop the car after the danger of striking plaintiff’s wagon became apparent, or by the exercise of ordinary care would have become apparent.
“5. By running the car at a high and dangerous rate of speed.
“Now then the court instructs you that before plaintiff can recover at all, he is bound to prove by the greater weight of all the credible evidence in the case that said collision was in fact directly caused by one or more of the specific items of negligence above enumerated, and no other, and if he has' failed to make this proof, or, having made it, if the evidence further shows that he himself through lack of reasonable care for his own safety in driving upon or along the track,
The plaintiff’s right of action was single and not collective of several distinct or separate causes of action and was properly pleaded in one count. The men* tal operations by which the individual members composing the panel of jurors severally attained a verdict cannot be subject of judicial inquiry nor be controlled by the'court, and the instruction was properly rejected; it is obvious that if the jury had seen fit to disregard such direction and arrive at a verdict for plaintiff, as illustrated by appellant by a division into groups, each section of different mind as to the particular dereliction of which defendant was guilty, but all concurring, as in this instance, in a harmonious and unanimous verdict, no power or method on the part of the court exists by which to ascertain that the jury had ignored the instruction and reached the conclusion in the manner illustrated. A similar instruction was refused in Holden v. Transit Co., 108 Mo. App. 665, decided by this court, and such declination adjudged correct and to that opinion we adhere. Judgment affirmed.