169 Mo. App. 405 | Mo. Ct. App. | 1912
Lead Opinion
This is the second appeal in this case, on the first appeal the judgment of the circuit court being reversed because of an instruction given, that instruction containing the same error condemned by our Supreme Court in Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S. W. 1166, and Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S. W. 78. The cause was accordingly remanded. At the second trial the pleadings' were as before, and with an exception hereafter to be referred to, the evidence was practically as at the first trial. Hence it is unnecessary to set out either and is sufficient to refer for them to the report of the case as found under the title Wilson v. United Railways Co., 142 Mo. App. 676, 121 S. W. 1083. At this second trial evidence was elicited from the plaintiff which it is claimed presents the case in a different light. There was a verdict for plaintiff for $5000. Defendant filing its motion for a new trial, alleging, among other grounds, that the verdict was excessive-, the trial court announced that unless plaintiff would remit $2000. from the verdict the motion- would be sustained. Plaintiff remitting that amount, judgment followed in his favor for $3000. It is from this that defendant below prosecutes the present appeal.
The first error assigned is to the refusal of the court to direct a verdict for defendant, because, as it is alleged, plaintiff admitted that he saw how the ties were loaded and knew they were in a dangerous condition, so dangerous that he would not have climbed on top of them had he taken time to think of the matter. Prom this it is argued that this evidence establishes the fact that the peril was obvious and imminent and that plaintiff both knew of the dangerous condition and would have appreciated its immediate threatening character had he taken time to think. Hence
The second contention is to the effect that the fact that the court on the former appeal determined that there was sufficient evidence to warrant the submission of the question of plaintiff’s contributory negligence to the jury is not conclusive on the present appeal, for, as it is claimed, the evidence presented on this last trial is materially different from that presented on the former one. . "We hold that there was evidence which was not presented at the first trial, the question for our determination now being whether that evidence makes any material change in the case.
The third assignment of- error is to the giving of an instruction at the instance of plaintiff, errors assigned being, first, to the body of the instruction itself ; second, in giving it at all, it being contended that there was no evidence upon which to base it. •
In support of their first assignment of error counsel have set out in full the new evidence which they claim differentiates this case from the case as before presented. "We have read all of it as set out by counsel for appellant with very great care, not however confining ourselves to that but also going to the abstract for all of the'testimony on this point. In addition to the summary of plaintiff’s testimony as to the accident, which is given in the report of the case when here on the first appeal (see 142 Mo. App. 1. c. 683), it may be well to state that at this trial, as on the former trial, it appears that the work of loading the ties on the car was done under the eye of the yard foreman, who, as representing defendant, had charge of the
Turning to what is set out as the new testimony of plaintiff brought out on cross-examination at this last trial, we give the salient parts of it. Plaintiff, after stating that as it was loaded the car stood “down hill,” that is, the front end higher than the rear, was asked this: “You knew when the position of the car was reversed on account of the-grade, so that the rear end of the car was higher than the front end, that the ties would most likely fall and commence to’ slip because the lean would be toward the front end, did you not?” He answered, “Why, that is a natural conclusion.” He was asked, “Well, you knew that?” He
“Q. You think you would; if you had stopped to think at that time how those ties were arranged you would have thought they were improperly arranged, would you not? A. I would have thought so; I certainly would.
“Q. And if you had stopped to think, you would have thought that the danger of those ties falling would have been so great you wouldn’t have climbed on top and afterwards undertaken to get down, would you? A. No, sir; I wouldn’t.
“Q. No, no; they were not blocked; we. are speaking of the pile of ties you have described now;, if you had stopped to think about the danger of those ties falling, you wouldn’t have done as you did, would you? A. No, I wouldn’t.
££Q. You got on top of the ties and climbed down, because you didn’t think of the danger? A. They were moving down the grade and Mr. Erb (the yard foreman) said: ‘Pull that down and let it coast down,’ and then going down to the switch point I had to get on top in order to go south on track 4.
1£Q. You don’t understand my question evidently; I understood you to say, if you had stopped to think about the way these ties were arranged you would have known they were improperly arranged ? A. If I had time to think.
<£Q. Didn’t you have time to think? A. I was busy with other work, obeying Mr. Erb’s orders by holding that trolley down; there were a span of wires across there, and you had to hold the trolley down.
££Q. And that was the reason you didn’t think of getting hurt, of the ties falling, because you were busy? A. I never thought of it.
££Q. If you had thought of that, you would have known it was dangerous? A. Yes, sir.
££Q. And knowing it was dangerous, the danger would have been so great that you would not have gotten on top of the ties, if you had stopped to think how dangerous it was, would you? A. No, sir; I wouldn’t.”
This is substantially the new matter brought out on cross-examination upon which counsel now rely in support of their contention that the demurrer should have been sustained and that the judgment should be reversed outright.
Our conclusion on this new testimony is that it does not in any way change the aspect of the case from that presented when here before, so far as concerns the rig’ht of plaintiff to recover. Notwithstanding this new evidence, we repeat here what we said when the case was before us on the first appeal, that “the work of loading the ties was done under the eye of the foreman and plaintiff was obeying his command when hurt; therefore, there can be no question about defendant being in fault if the ties were carelessly built up and in a way to endanger plaintiff unnecessarily.” While counsel for appellant have, on this appeal, cited us to several cases which were not formerly presented to us, we do not find anything in them to cause us to change the conclusion which we formerly arrived at on this proposition.
The third error assigned is to an instruction given ■ at the instance of respondent, plaintiff below. That instruction is as follows:
_“YI. If the jury find from the evidence in this case the facts set out in instruction number 1 given to be true, and further find from the evidence that said pile of ties as so piled was liable to fall by reason of not being fastened or secured to prevent its falling and injuring the plaintiff whilst at and about the work of his said employment, if the jury find that the said pile was so insecure and unfastened; and if the jury find from the evidence that the plaintiff in the exercise of ordinary care would have known that said pile of ties was so unfastened and insecure, and that there
It is strenuously argued that this instruction numbered six contains the same error pointed out by this court in Bennett v. Crystal Carbonate Lime Co., 146 Mo. App. 565, 124 S. W. 608, and in Bradley v. Chicago, M. & St. P. Ry. Co., 138 Mo. 293, 39 S. W. 763, and in other cases cited by counsel for appellant. The Bennett decision is largely bottomed on the Bradley decision.
We have again carefully considered that instruction in connection with what is said by our Supreme Court in the Bradley case and think that under the facts in the case'before us and in the light of that decision this instruction is correct. In the Bradley case, Judge Macfarlane, who wrote the opinion, calls attention to the fact that the plaintiff at the time knew the condition of the bank under which he was working; that he knew that earth would break loose and fall when undermined; knew that earth had previously fallen of its own weight and knew that defendant had been having the top blasted or pried off so as to prevent it falling upon him. He then says, referring to the action of the plaintiff (1. c. 310): “He was not suddenly, without having time to reflect, ordered temporarily into a place of danger.” After setting out the circumstances' connected with the accident in the
Moreover, as has been decided in case after case, instructions are to be considered as a whole; as parts of one charge. If so considered they embody correct declarations of the law, then minor inaccuracies or omissions in any one of them are not to be seized on to overturn a verdict. If, taken as a whole, they did
Thus, at the instance of plaintiff, the court, among other things, told the jury that plaintiff, upon entering the service of defendant, assumed the ordinary perils incident to the employment but he did not assume any peril or risk, if there was either, arising from any want of ordinary care on the part of defendant or its foreman while engaged at or about the work in which plaintiff was engaged.
At the instance of defendant the court told the jury that if they believed from the evidence that plaintiff knew that the ties on this car were not blocked or fastened before and at the time he got on top of them and that in so going upon the top, knowing that they were not so blocked or fastened, he did not exercise the care and prudence that an ordinarily careful and prudent man would have exercised under the circumstances, and that his so going upon the ties contributed to produce his injuries, then their verdict must be for defendant, even if the jury found that defendant had negligently loaded the ties upon the car without blocking or fastening them.
The court further told the jury at the instance of defendant that although the jury might believe from the evidence that the'front end of the ties piled upon the car was arranged perpendicularly, without being blocked or fastened, and that the ties so arranged would „be liable to be shaken loose and fall, and if the jury further believed from the evidence that the danger of their falling was obvious and imminent and could have been known to plaintiff by the exercise of ordinary care, and if the jury further believed from the evidence that the only reason plaintiff did not see
The court gave a further instruction at the instance of defendant, to the effect that although the jury may believe from the evidence that defendant negligently piled the ties upon the car in question without blocking or fastening the same, “yet if the jury further believe from the evidence that plaintiff knew that said ties were not blocked and fastened and thereafter went upon the top of same, and that in attempting to get down off same to the ground or floor of the car for the purpose of adjusting the trolley, said ties became disarranged and fell upon plaintiff’s leg, and if the jury further find from the evidence that the danger of said ties falling was so apparent that an ordinarily prudent man, under the circumstances, would not have attempted to so get down from said ties, and that plaintiff’s so getting down contributed to his injuries, your verdict and finding will be for defendant.” The only difference between the instruction as asked by defendant and this instruction as given by the court was the interlineation in it by the court, and as we hold, properly, of the words, “the danger of said ties falling was so apparent that,” which we have underscored.
With these instructions before the jury, the relevancy of which to the issues will appear by reference to our former opinion in the case (142 Mo. App. 676), it is impossible to say that the instruction complained of was misleading or that the giving of it constitutes reversible error.
The General Assembly of our State has enacted that “the Supreme Court or Courts of Appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.” [Section 2082, R. S.
Whatever difference of opinion there may be as to the power of the Legislature to control the judgments of the courts, no one doubts the wisdom and justness of these statutory provisions. Even without them, an enlightened court should find no good reason for holding to the contrary. That they are treated by our courts as binding upon them see Freeland v. Williamson, 220 Mo. 217, l. c. 229, 119 S. W. 560; Mann v. Doerr, 222 Mo. 1, l. c. 15, 121 S. W. 86.
In Peterson v. Transit Co., 199 Mo. 331, l. c. 344, 97 S. W. 860, the Supreme Court said: “These instructions presented the case very fairly and clearly to the jury, and we fail to find in them any material error prejudicial to the defendant, affecting the merits of the case. Although they may not come fully up to the standard of perfection required by the criticisms of defendant’s learned and ingenious counsel yet as upon the whole of the evidence the verdict was manifestly for the right party — we cannot for that reason reverse the judgment thereupon.” What are now sections 1850 and 2082, are cited in support of this.
Applying these decisions and the statute to ’this case, considering all the instructions given, we do not believe that the error assigned on the sixth instruction was of such a character as to prejudice the defendant or mislead the jury. The very objection to and criticism of it is one that could only be raised by the most astute and keen mind. We do not believe these would ever have occurred to the ordinary, everyday men of which all juries are composed.
Holding, as we have, that there was evidence to warrant the submission of the case to the jury, we hold
Without going into the case with any more particularity and confining ourselves here to a discussion of the points presented on this appeal, we reiterate what we said in this case, 142 Mo. App. 676, when formerly here as to the merits of the case itself and as to the correctness of this verdict and judgment, the error in the instruction for which it was formerly reversed not having been repeated at this second trial. We so held in an opinion written and filed when the case was first submitted on this present appeal. A motion for rehearing was filed and sustained and the cause then taken as resubmitted. On reconsideration, we find no reason to change our first conclusion but withdraw the opinion heretofore filed and substitute this for it.
The judgment of the circuit court is affirmed.
Dissenting Opinion
DISSENTING OPINION.
If plaintiff’s instruction numbered 6 in this case is to be distinguished from instruction numbered 1 condemned in the Bradley case on the ground that plaintiff was acting promptly in response to an order without time for reflection, it seems that question should have been submitted to the jury for a finding and not declared in the appellate court as a conclusion of law. I see nothing in the instruction under consideration calling upon the jury to find that plaintiff received his injury while acting without time for reflection as to a proper course wto pursue.
Furthermore, by interlineation, the court modified ■one of defendant’s instructions and inserted the same proposition therein. To my mind it is entirely clear that plaintiff’s sixth instruction and the modification of defendant’s.instruction misstated the rule with respect to the degree of care that plaintiff is required to exercise for his own safety. The instruction under review, according to my judgment, infringed the rule declared by the Supreme Court in Bradley v. Chicago, M. & St. P. Ry. Co., 138 Mo. 293, 39 S. W. 763. I deem the judgment of the court on this question to be in conflict with that of the Supreme Court in the case of Bradley v. Chicago, M. & St. P. Ry. Co., 138 Mo. 293, 39 S. W. 763 and, for that reason, request that the cause be certified to the Supreme Court for final determination.