21 S.W. 214 (Mo. 1893), Henry v. Grand Avenue Railway Company

Citation:21 S.W. 214, 113 Mo. 525
Opinion Judge:Burgess, J.
Party Name:Henry et al., Appellants, v. The Grand Avenue Railway Company
Attorney:Kagy & Bremermann for appellants. Karnes, Holmes & Krauthoff for respondent.
Case Date:January 31, 1893
Court:Supreme Court of Missouri
 
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Page 214

21 S.W. 214 (Mo. 1893)

113 Mo. 525

Henry et al., Appellants,

v.

The Grand Avenue Railway Company

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from Jackson Circuit Court.

Affirmed.

Kagy & Bremermann for appellants.

(1) The court refused an instruction (number 1) which told the jury what the issues of the case are. The instruction is substantially like an instruction given in Roe v. City, 100 Mo. 192. This instruction defined the issues made by the pleadings. It was the duty of the court to tell the jury what the issues were. Dashler v. Nisely, 32 Mo. 498; 2 Thompson on Trials, sec. 2314; 11 American & English Encyclopedia of Law, sec. 5, p. 251; Butcher v. Death, 15 Mo. 270. (2) Defendant's first instruction is manifestly erroneous and violative of the plainest principles of law. Webster's Dictionary, definition of "chance;" Crutch-field v. Railroad, 76 N.C. 320; Brown v. Kendall, 6 Cush. (Mass.) 292; Schneider v. Ins. Co., 24 Wis. 28; White v. Railroad, 30 S.C. 218; Paxton v. Boyer, 67 Ill. 132; Morris v. Platt, 32 Conn. 35; Bedford v. Railroad, 99 Ind. 551; Lemon v. Chanselor, 68 Mo. 346; Morning Light, 2 Wall. 560; Houston v. Railroad, 49 Tex. 576; 1 American & English Encyclopedia of Law, title "Test of Liability" p. 82; Martin v. Miller, 16 Mo. 508; Morgan v. Cox, 22 Mo. 373; Conway v. Reed, 66 Mo. 346; Dowell v. Guthrie, 99 Mo. 653. (3) Even though the instruction states a correct principle of law, which it does not, it is wholly in conflict with the instructions given at both plaintiff's and defendant's instance, and a new trial must be granted for inconsistency. (4) Defendant's second instruction is vague and ambiguous. (5) The court erred in permitting defendant to show by its president, Mr. Walton Holmes, that it was customary for men to cross at cross-walks. The rights of pedestrians and railroads are reciprocal on the public streets. True, the city has provided cross-walks, but plaintiff was not bound to use them; she had a right to cross at such point as she saw fit, exercising due care and caution. Stringer v. Frost, 116 Ind. 477, and cases cited; Winters v. Railroad, 99 Mo. 517. (6) The fourth instruction given for defendant is bad. It is true that the doctrine of comparative negligence does not prevail in this state, but the rule is well settled that if defendant by the exercise of ordinary care could have discovered and averted the calamity, but failed to do so, then there is a liability. Dunkman v. Railroad, 95 Mo. 232; Harlan v. Railroad, 64 Mo. 22; Bergman v. Railroad, 88 Mo. 678; Rine v. Railroad, 88 Mo. 392; Mertz v. Railroad, 88 Mo. 677; Drain v. Railroad, 86 Mo. 574. (7) While instructions must be construed as a whole, and if, taken together, they present the law correctly, the courts will not reverse; but the court lost sight of another well-settled rule, that instructions must be consistent and not contradictory.

Karnes, Holmes & Krauthoff for respondent.

(1) Instruction number one asked by plaintiff was properly refused. This instruction is not properly supplemented by any other as to the issues, but it alone undertakes to present to the jury all the questions to be ascertained. It is well settled that instructions must not assume the truth of controverted facts. Stoher v. Railroad, 91 Mo. 509-518; Wyandotte, etc. Co. v. Waldo, 70 Mo. 629; Donnell v. Bank, 80 Mo. 165; Wilkinson v. Thompson, 82 Mo. 317; Bank v. Crandall, 87 Mo. 208; Dowling v. Allen, 88 Mo. 293; Liggett v. Morgan, 98 Mo. 39; Robertson v. Drane, 100 Mo. 273. There are cases where such instructions as these are proper. That is true where, notwithstanding the issues made by the pleadings, both parties during the trial treat the disputed fact or facts as conceded. Pope v. Railroad, 99 Mo. 406; Fields v. Railroad, 80 Mo. 203. But the fact must be undisputed. Barr v. Armstrong, 56 Mo. 577; Mauerman v. Siemerts, 71 Mo. 101; Caldwell v. Stephens, 57 Mo. 589. (2) Defendant's first instruction, even standing alone, was not erroneous or misleading, and certainly not so as a part of the entire law of the case given. Words should be taken in their usual and ordinary meaning. Henry v. Evans, 97 Mo. 47. For a definition of "accident" see Worcester's dictionary; Webster's dictionary; Cooley on Torts, p. 80, note 2; Whitaker's Smith on Negligence, p. 421; Railroad v. Locke, 112 Ind. 404. "The law does not fix any responsibility for injuries purely accidental." Mitchell v. Railroad, 51 Mich. 236; Lewis v. Railroad, 54 Mich. 55. Modified and explained as the word "accident" was by the word "merely," no one could fail to understand that the instruction referred to an unforeseen, unexpected and unavoidable occurrence; but the instructions were to be taken as a whole. There is no necessity for qualifying each by reference to the others. Owens v. Railroad, 95 Mo. 169; Harrington v. Sedalia, 98 Mo. 583; State v. Mathews, 98 Mo. 125; Le May v. Railroad, 105 Mo. 361. The leading case of Sawyer v. Railroad, 37 Mo. 262, shows the ordinary use of this word. (3) The verdict of the jury was manifestly for the right party and a different result could not have been reached without injustice. When this is true a case will not be reversed, even though some of the instructions are faulty. Noble v. Blount, 77...

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