18 S.W. 890 (Mo. 1891), Rosenkranz v. Lindell Ry. Co.
|Citation:||18 S.W. 890, 108 Mo. 9|
|Opinion Judge:||Macfarlane, J.|
|Party Name:||Rosenkranz by Next Friend v. Lindell Railway Company, Appellant|
|Attorney:||Alexander Martin and Boyle, Adams & McKeighan for appellant. A. R. Taylor and Alexander Young for respondent.|
|Case Date:||December 22, 1891|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein, Judge.
(1) The court erred in refusing the instruction asked at the close of the plaintiff's evidence, to the effect that he was not entitled to recover, for reasons particularly stated in the brief following. (2) The verdict is against the weight of evidence, and there is not in the whole record any substantial evidence to support it. For particular reasons see the brief following. (3) There was contributory negligence in the plaintiff's case, and it became more apparent at the close of defendant's evidence. See reasons in brief following. (4) The court erred in giving, at the instance of plaintiff, instruction, numbered 4, relating to measure of damages. First. In so far as instruction, numbered 4, directs the jury to compensate plaintiff "for any loss of earnings after he shall have attained the age of twenty-one years, the same is not predicated on any evidence, but directs the jury to speculate, conjecture and guess, and is erroneous. Second. The part of said fourth instruction requiring the jury to give damages for loss of earnings after the boy shall have attained the age of twenty-one years, is erroneous, as presenting too remote, conjectural and speculative considerations for the jury's action. Third. The same instruction, in so far as it directs the jury to compensate plaintiff "for any loss of earnings after he shall have attained the age of twenty-one years, is erroneous, in that it assumes that plaintiff will live until he arrives at the age of twenty-one years. Fourth. The same instruction, in so far as it directs the jury to compensate the plaintiff "second, for any loss of earnings after he shall have attained the age of twenty-one years" * * * "which the plaintiff has sustained or will hereafter sustain by reason of said injuries," etc., is inconsistent and ambiguous in its language, misleading and confusing. Fifth. Said instruction, numbered 4, is erroneous, in so far as it directs the jury to compensate plaintiff, "fourth, for any permanent injury to his body, other than disfigurement and deformity," because there is no evidence whatsoever of any such other permanent injury, and because the same is misleading in suggesting to the jury that there was or might be such other permanent injury.
[108 Mo. 11]
This action was brought by plaintiff, a minor, by his next friend, against the defendant, a horse-car railroad company in St. Louis, to recover damages for injuries received on the sixteenth day of February, 1888, by the alleged negligence of the defendant.
The charge of negligence made in the petition was, in substance, that the plaintiff was knocked down and run over by one of defendant's cars, and horse attached thereto, while the plaintiff was crossing Chouteau avenue, at a point where said avenue passes house number 2313; that he was seriously and permanently injured thereby, and that he was so knocked down and injured through the negligence of defendant and its servants in...
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