21 S.W. 742 (Mo. 1893), Prewitt v. Eddy

Citation:21 S.W. 742, 115 Mo. 283
Opinion Judge:Gantt, P. J. --
Party Name:Prewitt v. Eddy et al., Receivers, Appellants
Attorney:Jackson & Montgomery for appellants. Waller & Rodes for respondent.
Case Date:March 25, 1893
Court:Supreme Court of Missouri
 
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Page 742

21 S.W. 742 (Mo. 1893)

115 Mo. 283

Prewitt

v.

Eddy et al., Receivers, Appellants

Supreme Court of Missouri, Second Division

March 25, 1893

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Reversed and remanded.

Jackson & Montgomery for appellants.

(1) The court erred in refusing to give the first and third instructions asked by defendants. First. Because the only negligence attempted to be shown on the part of defendants was in running the train which struck the plaintiff at a rate of speed in excess of the limit prescribed by the ordinance of the city of Moberly, which did not apply to the place where the accident occurred. Second. Because the evidence clearly establishes that the plaintiff went upon the track at a point so near to the approaching train that it could not have been stopped even if it had been running only six miles an hour. Kelly v. Railroad, 75 Mo. 138. Because the evidence shows that plaintiff was guilty of contributory negligence in allowing the mule he was riding to carry him onto the track in front of the train, and in not alighting from the mule before he was carried into the dangerous position. (2) The court erred in giving the third instruction on behalf of plaintiff, because the same is not qualified by the condition that the train could have been stopped by the exercise of proper care in time to have avoided the injury if it had been running only six miles per hour, and the jury were authorized to find for plaintiff regardless of that fact. (3) There was error in refusing defendants' sixth instruction after having admitted from plaintiff's evidence that the engine was not reversed, and from defendants' further evidence uncontradicted showing that reversing the engine would not have aided in stopping the train, and that the engineer used his best judgment at the time. Bell v. Railroad, 72 Mo. 50. (4) The court erred in refusing the defendants' seventh instruction as prayed, and in amending it and giving it as amended, because the amendment rendered the instruction meaningless in first stating a rule of contributory negligence, and then authorizing the jury to disregard that rule and to establish one for themselves. (5) The court erred in refusing defendants' eighth instruction. It correctly set forth the care and diligence required of the plaintiff and properly stated the rule as to contributory negligence on his part. (6) It was error to refuse the defendants' tenth instruction and to amend it by striking out the clause relating to plaintiff being under the influence of liquor at the time of the accident. There was evidence from which the jury might have found that plaintiff was under the influence of liquor at the time of the accident, and that the same affected his actions at that time. (7) The language used by plaintiff's counsel in his closing address to the jury was improper and prejudicial to the defendants and constitutes error. There was further error in the court omitting to call the attention of the jury to a portion of said language when attempting to direct the jury orally in regard to the objectionable remarks. The vice and injury of the improper remarks could not be removed by the oral statement of the court directing the jury to disregard the same, and the injury and the error still remained. Ritter v. Bank, 87 Mo. 574; Marble v. Walters, 19 Mo.App. 134; Gibson v. Zeibig, 24 Mo.App. 65, and cases cited; Koch v. Hebel, 32 Mo.App. 103; Brown v. Swineford, 44 Wis. 282; Attaway v. Mattox, 14 S.W. 1017; Geist v. Railroad, 51 N.W. 1112; Thompson v. Railroad, 51 N.W. 995. The statement of the court to the jury directing them to not consider such remarks in arriving at their verdict was in the nature of an oral instruction after the conclusion of the argument, and was therefore in violation of section 2188 of the Revised Statutes. (8) The verdict was excessive. The plaintiff was painfully but not permanently injured. There was no wantonness on the part of defendants' servants. The verdict is not a reasonable or just measure of the damage sustained by plaintiff. It can only be the result of passion and prejudice on the part of the jury kindled and fanned by the inflammatory address of plaintiff's counsel.

Waller & Rodes for respondent.

(1) The facts of this case render defendants liable under the settled law of this court, to-wit: First. The violation of municipal ordinances which regulate the speed of trains is negligence per se. Schlereth v. Railroad, 96 Mo. 515; Eswin v. Railroad, 96 Mo. 294; Karle v. Railroad, 55 Mo. 483. Second. And in cases where, if the train had been running at the speed prescribed in the ordinance, it could have been stopped after plaintiff was discovered upon the track and in peril and in time to have avoided the injury, plaintiff is entitled to recover. Fiedler v. Railroad, 107 Mo. 652; Keim v. Railroad, 90 Mo. 321. Third. And under such circumstances plaintiff may recover even where he is negligently on the track. Kelly v. Railroad, 95 Mo. 285; Fiedler v. Railroad, supra. (2) Appellants' first assignment of error is, that the court erred in refusing their first and third instructions, because the ordinance of the city of Moberly relied on by respondent did not apply to the place where the accident occurred. The evidence is against appellants' contention; besides no such issue was made in the pleadings, or in the trial of the cause in the court below, nor was any ruling of the court had on said point in the trial court, or exceptions saved. Appellants' only objection to the introduction of said ordinance in the trial court was on the ground that the book containing ordinance was not properly authenticated under the statute. Appellant cannot raise this objection in the appellate court for the first time. Only such exceptions as have been expressly decided by the trial court are subject to review in the appellate court. 1 Revised Statutes, 1889, sec. 2302, p. 547; Orr v. Rode, 101 Mo. 399; Bollinger v. Carrier, 79 Mo. 318; Light v. Railroad, 89 Mo. 108. (3) Appellants' second, third, fourth, fifth and sixth assignments of error are with reference to the giving and refusing of instructions. Instructions should be taken as a whole, and when so taken they fairly embrace the law applicable to the case in a manner not calculated to mislead the jury, they will not be held erroneous, even though subject to verbal criticism. Reilly v. Railroad, 94 Mo. 611; Henschen v. O'Bannon, 56 Mo. 291. Instructions objectionable because too indefinite may be cured by others in which the vice does not exist. Le May v. Railroad, 105 Mo. 370. (4) Relative to appellants' seventh point, touching alleged improper remarks of respondent's counsel, we submit that no ruling or action of the trial court, to which exception was or could have been taken, or upon which error could have been predicated, appears in the record. Appellants' objection and exception do not purport to be based on any ruling, action or non-action of the court, but upon the action and remarks of respondent's counsel alone. Exception must be taken to the opinion, ruling or action of the court. Errors of counsel are not proper matters of review in the appellate court. 1 Revised Statutes, 1889, sec. 2167, p. 563; 1 Revised Statutes, 1889, secs. 2302, 2303, p. 590; Smith v. Dunklin Co., 83 Mo. 196; Case v. Fogg, 46 Mo. 47; Koegel v. Givens, 79 Mo. 79; Mulcairn's Adm'x v. Janesville, 67 Wis. 35; Bradshaw v. State, 17 Neb. 151; McLain v. State, 24 N.W. 724; Bullis v. Drake, 29 N.W. 294; MacLean v. Scripps, 52 Mich. 222; State v. Anderson, 10 Ore. 457; Cross v. State, 68 Ala. 476, 484; Elliott's Appellate Procedure, secs. 769, 770, 771, 783, 795; Randolph v. Alsey, 8 Mo. 657; St. Louis v. Brooks, 18 S.W. 22. First. The point that the court erred in not withdrawing all of the alleged objectionable remarks of plaintiff's attorney is an afterthought. No such point was made or ruled on or excepted to in the trial court. In civil cases no exceptions can be taken in the supreme court except such as have been expressly decided by the trial court. 1 Revised Statutes, 1889, sec. 2302; Orr v. Rode, 101 Mo. 399; Brennan v. St. Louis, 92 Mo. 489. Second. In appellants' motion for new trial no error of the trial court is alleged, specified or pointed out, or in anywise connected with the alleged improper remarks of respondent's counsel. Only errors of the trial court can be reviewed in the appellate court, and since no error of the court is specified in the motion there is nothing for the appellate court to review. 1 Revised Statutes, 1889, secs. 2167, 2302, 2303. Third. He who claims error must make that error apparent, and when a record is silent as to facts upon which a ruling is made, or is so indefinite with reference to some action of the court, or proceeding in the trial, that the appellate court is left in doubt as to what was actually done, the appellate court will presume in favor of the decision of the trial court. Kennedy v. McNichols, 29 Mo.App. 13; Nall v. Railroad, 97 Mo. 74. Fourth. Illegal and improper remarks made by counsel only constitute reversible error when sanctioned by the court, or where they are persisted in by counsel after objection made, and against the admonition of the court. Sidekum v. Railroad, 93 Mo. 407; Lloyd v. Railroad, 53 Mo. 514; 1 Thompson on Trials, sec. 960, p. 741; sec. 964, p. 749; Cross v. State, 68 Ala. 476-484. The verdict is not excessive. Dougherty v. Railroad, 97 Mo. 665; Griffith v. Railroad, 98 Mo. 175.

OPINION

[115 Mo. 289] Gantt, P. J. --

This action was commenced in the circuit court of Pettis county for...

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