62 Mo. 408 | Mo. | 1876
delivered the opinion of the court.
This case is here on an appeal from the second trial in the circuit court, which resulted, as the first tidal did, in a verdict for the defendant. The history of the first trial is reported in 55 Mo.. 485. The report of the second trial contains a statement of all the evidence, and this more clearly shows the important disputed facts, and consequently the applicability of the instructions given to the jury.
It appears that the plaintiff’s son, whose injury this action was brought to redress, had, previous to his fall in stepping from the street car, cut his knee with a hatchet, and that medical advice and aid had been received in regard to this wound.
It is evident that the condition of this hatchet wound constituted a very material .element in arriving at a conclusion as to the prudence of the young man’s movements in jumping from the street car.
Another circumstance, having a material bearing on the case, was the alleged conversation between young Wyatt and the conductor, and the testimony on this point is fully as contradictory as it is in regard to the wound from the hatchet. The young man himself testifies, that he asked the conductor three several times to stop the car at the street crossing where he desired to get off; that the conductor not only refused to stop the car, but told him, if he insisted on getting off, to jump off. On the other hand, the conductor stated on the trial, that he was never asked to stop the car, and did not observe young Wyatt’s fall when he stepped off. Another witness, who got on the car with Wyatt, and got off at the same place, and about the same time, states that no request was made to the conductor, and no bell rung.
The instructions given for the plaintiff are not objected to. It is insisted, however, that the refusal of the court to give the second one asked by the plaintiff was error; but that instruction directed the jury to find for plaintiff, if they found that the conductor refused to stop the car, when asked, and that young Wyatt carefully, and without negligence, stepped off. The condition of the young man’s knee at the time is wholly ignored, and the contributory negligence is simply left to the jury to find as a matter of fact, without any explanation from the court of what would, on the evidence, constitute such contributory negligence.
The sixth instruction, given for the defendant directs the jury, that if satisfied that the car was moving faster than usual when Wyatt got off, and that Wyatt knew the risk and danger, and was not influenced by the remark of the conductor “to jump,” this was evidence of want of care.
This instruction is objectionable. It does not refer to Wyatt’s wound, nor direct the attention of the jury to the facts, which, if satisfactorily proved, would, in the estimation of the court, constitute negligence; but simply declares certain facts evidence of negligence, and those facts do not of themselves constitute negligence. Wyatt’s knowledge of the risk could not be ascertained, but the continued lameness or disability arising from a previous wound would be a fact authorizing a jury to infer a want of ordinary prudence on his part. This instruction, therefore, was prejudicial to plaintiff, since the jury might have drawn the inference of Wyatt’s knowledge of the risk, or, which is the same thing, his negligence from the single fact of the speed of the street car at the time of the injury, the only fact referred to in the instruction.
The judgment must be reversed, and the cause remanded. Che other judges concur.