26 S.W. 20 (Mo. 1894), Baker v. The Kansas City, fort Scott & Memphis v. Company

Citation:26 S.W. 20, 122 Mo. 533
Opinion Judge:Black, C. J.
Party Name:Baker et al. v. The Kansas City, Fort Scott & Memphis Railroad Company, Appellant
Attorney:Wallace Pratt, C. W. Blair and I. P. Dana for appellant. Gates & Wallace for respondent.
Judge Panel:Black, C. J. Macfarlane, J., concurs. Brace, J., concurs,
Case Date:June 04, 1894
Court:Supreme Court of Missouri
 
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Page 20

26 S.W. 20 (Mo. 1894)

122 Mo. 533

Baker et al.

v.

The Kansas City, Fort Scott & Memphis Railroad Company, Appellant

Supreme Court of Missouri, First Division

June 4, 1894

Appeal from Bates Circuit Court. -- Hon. D. A. DeArmond, Judge.

Reversed and remanded.

Wallace Pratt, C. W. Blair and I. P. Dana for appellant.

(1) Mrs. Baker was guilty of negligence contributing to, if not causing, her injuries, and, therefore, was not entitled to recover for them. Beach on Contributory Negligence, sec. 63; Patterson's R'y Accident Law, p. 168, et seq.; Boyd v. Railroad, 105 Mo. 371; Harlan v. Railroad, 64 Mo. 480; Turner v. Railroad, 74 Mo. 607; Kelley v. Railroad, 75 Mo. 138; Tucker v. Railroad, 23 N.E. (N. Y.) 916; Stepp v. Railroad, 85 Mo. 235; Shaw v. Railroad, 104 Mo. 648; Hunter v. Railroad, 23 N.E. (N. Y.) 9; Artz v. Railroad, 34 Iowa 159; Railroad v. Elliott, 28 Ohio St. 340; Wharton on Negligence, secs. 382, 384; Eswin v. Railroad, 96 Mo. 297; Railroad v. Adams, 33 Kan. 427. (2) And this is true, even though defendant failed to give the statutory signals for the crossing. Butterfield v. Foster, 11 East, 60; Railroad v. Goddard, 25 Ind. 185; Hudson v. Railroad, 101 Mo. 35; Rodrian v. Railroad, 26 N.E. (N. Y.) 741; Mehegan v. Railroad, 26 N.E. (N. Y.) 936; Railroad v. Dinseman, 16 S.W. 169; Railroad v. Houston, 95 U.S. 702; Dlauhi v. Railroad, 105 Mo. 645; Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 478; Henze v. Railroad, 71 Mo. 636; Hixson v. Railroad, 80 Mo. 335; Kelley v. Railroad, 88 Mo. 534; Yancey v. Railroad, 93 Mo. 433; Railroad v. Loomis, 13 Ill. 548. (3) And it is equally true if defendant was negligent in any respect alleged in the petition, for her negligence concurred with defendant's and barred her recovery. Skelton v. Railroad, L. R. 2 C. P. 631; Fletcher v. Railroad, 21 N.E. 302; Daniels v. Railroad, 26 N.E. (N. Y.) 466; Butts v. Railroad, 98 Mo. 272; Scott v. Railroad, 16 N.Y.S. 350; Clark v. Railroad, 50 N.W. 365; Olson v. Railroad, 50 N.W. 412. (4) There was no proof that defendant was negligent in any respect alleged in the petition. Rafferty v. Railroad, 91 Mo. 33; Bell v. Railroad, 72 Mo. 50; Express Co. v. Smith, 33 Ohio St. 519; R. S. 1889, sec. 2608. (5) The first instruction given for plaintiff was erroneous and improper. Barr v. Armstrong, 56 Mo. 589; Vanhooser v. Berghoff, 90 Mo. 487; Schlereth v. Railroad, 96 Mo. 509; Mathiasen v. Mayer, 90 Mo. 585; Stepp v. Railroad, 85 Mo. 229. (6) The instruction given by the court of its own motion was erroneous and improper. Frederick v. Allgaier, 88 Mo. 598; Price v. Railroad, 77 Mo. 508; Waldhier v. Railroad, 71 Mo. 514; Newell v. Iron Co., 5 Mo.App. 253; Chouteau v. Iron Works, 83 Mo. 83; Jones v. Jones, 57 Mo. 138. (7) Defendant's instructions numbers 1, 4, 5, 6, 7, 11, 12, 13, 14 and 15 should have been given. (8) The amount of the verdict was excessive. (9) The circuit court erred in holding that it had no power to amend the bill of exceptions because the case was not tried before, nor the bill signed by, the then judge thereof, but before and by his predecessor. Darrier v. Darrier, 58 Mo. 233; De Kalb Co. v. Hixon, 44 Mo. 342; Pockman v. Meatt, 49 Mo. 345; Gibson v. Choteau's Heirs, 45 Mo. 173; Hansbrough v. Fudge, 80 Mo. 308; R. S. 1889, secs. 2171, 2172. (10) Also in holding that it had no such power because there did not appear to be any records, minutes, docket entries or papers on file in the cause from which the amendment could be made, and in finding that there did not appear to be any such papers on file. Robertson v. Neal, 60 Mo. 579. (11) In not finding conclusively that no instruction 23 was asked by or given for defendant.

Gates & Wallace for respondent.

(1) The act of the defendant in running its train in sections across this highway with the view obstructed, in order to save time in making as witch, was gross, if not criminal negligence. It was an act of negligence. per se. Brown v. Railroad, 32 N.Y. 597; O'Connor v. Railroad, 94 Mo. 150; Railroad v. Converse, 139 U.S. 469; French v. Railroad 116 Mass. 537; Ferguson v. Railroad, 63 Wis. 145; Butler v. Railroad, 28 Wis. 487; Conley v. Railroad, 12 S.W. 764; Railroad v. Schmidt, 126 Ind. 290; Railroad v. Batches, 55 Ill. 379; Railroad v. O'Shields, 90 Ala. 29. (2) The plaintiff was not guilty of contributory negligence. This was a question for the jury, and upon which the defendant had the burden of proof. The jury decided it against the appellant. Ferguson v. Railroad, 63 Wis. 145; French v. Railroad, 116 Mass. 537; Brown v. Railroad, 32 N.Y. 597; Conley v. Railroad, 12 S.W. 764; Butler v. Railroad, 28 Wis. 487; Howard v. Railroad, 32 Minn. 214; O'Connor v. Railroad, 94 Mo. 150; Railroad v. Converse, 139 U.S. 469; Donohue v. Railroad, 91 Mo. 357; Kelley v. Railroad, 101 Mo. 67; Dixon v. Railroad, 104 Mo. 491; LeMay v. Railroad, 105 Mo. 361. (3) There was no error in giving ing instruction number 1 on the part of the plaintiff. An instruction similar to this was approved in O'Connor v. Railroad, 94 Mo. 156. (4) There was no error in giving the instruction given by the court of its own motion. (5) The court did not err in refusing the instructions asked by the appellant numbered, from 1 to 15 inclusive. First. The appellant asked twenty-three instructions, which would have been sufficient cause for refusing them all. Crenshaw v. Sumner, 56 Mo. 517; Deshberger v. Harrington, 28 Mo.App. 632; Renshaw v. Ins. Co., 33 Mo.App. 394; Hannibal v. Richards, 35 Mo.App. 15; Kinney v. Springfield, 35 Mo.App. 97; McAllister v. Barnes, 35 Mo.App. 668; Norton v. Railroad, 40 Mo.App. 642; Flynn v. Railroad, 43 Mo.App. 436. Second. The instructions given stated the law of the case fully and were more favorable to defendant than it was entitled to. Third. The failure of the appellant to preserve in the record instruction number 23 which was given at its request, forbids the court from considering the refused instructions. (6) Because of the failure of the appellant to preserve in the record the instruction number 23, which was given at its request, this court can not say that the court below committed any error, either in giving or refusing any of the instructions; for the reasons, first, that any errors committed, if there were any (which is not admitted), might have been invited by the appellant in said twenty-third instruction, and, secondly, the said instruction might have contained everything that the appellant was entitled to ask in the refused instructions. Greenbaum v. Millsaps, 77 Mo. 474; Berney v. Sharp, 78 Mo. 73; Porth v. Gilbert, 85 Mo. 125; Wilkerson v. Railroad, 26 Mo.App. 144; Davis v. Hilton, 17 Mo.App. 319; Elliott v. Rosenberg, 17 Mo.App. 667; Hoyt v. Quinn, 20 Mo.App. 73. (7) The damages found by the jury were not excessive. This was a question for the jury and their verdict will not be disturbed, unless it was clearly the result of passion or prejudice. Harrold v. Railroad, 24 Hun, 184; Groves v. Rochester, 39 Hun, 5; Railroad v. Holland, 18 Ill.App. 418; Alberti v. Railroad, 43 Hun, 421; Railroad v. Thompson, 64 Miss. 584; Woodbury v. District, 5 Mackey, 127; Railroad v. Dorsey, 66 Tex. 148; Schultz v. Railroad, 46 N.Y.S. 211; Shaw v. Railroad, 8 Gray, 47; Walker v. Railroad, 63 Barb. 260; Waldier v. Railroad, 87 Mo. 37; Barksdull v. Railroad, 23 La. Ann. 180; Dougherty v. Railraod, 97 Mo. 647; Robinson v. Railroad, 48 Cal. 409; Porter v. Railroad, 71 Mo. 66; Belair v. Railroad, 43 Iowa 662; Railroad v. Parks, 88 Ill. 373; Hanlon v. Railroad, 104 Mo. 381. (8) A party can not complain of an instruction given at his request. Chamberlain v. Smith, 1 Mo. 482; Flowers v. Helm, 29 Mo. 324; Crutchfield v. Railroad, 64 Mo. 255; Tetherow v. Railroad, 98 Mo. 74. (9) A party can not try his case on one theory and then in this court complain that it should have been tried on another and different one. Leabo v. Goode, 67 Mo. 126; Walker v. Owen, 79 Mo. 563; Bank v. Armstrong, 62 Mo. 65; Tomlinson v. Ellison, 104 Mo. 105. (10) This court has repeatedly held that it will not reverse a case on the ground of erroneous instructions, when the appellant asked and obtained instructions involving the same error. Smith v. Culligan, 74 Mo. 388; Garesche v. College, 76 Mo. 332; Holmes v. Braidwood, 82 Mo. 610; Noble v. Blount, 77 Mo. 235; Fairbanks v. Long, 91 Mo. 628. (11) If a party has sustained no injury from the instruction given, it is immaterial whether the instruction is erroneous or not. Swearingin v. Orne, 8 Mo. 707; Vaulx v. Campbell, 8 Mo. 224; Bellissime v. McCoy, 1 Mo., 318; Slate v. Burr, 81 Mo. 108; Ridenhour v. Railroad, 102 Mo. 270; Fugate v. Millar, 109 Mo. 280; McGrew v. Railroad, 109 Mo. 582. (12) If a party can gain an advantage in this court from an error committed at his own request by the court below, what becomes of the long line of decisions which hold that this court will not consider objections to the action of the lower court in giving or refusing instructions which were not assigned as error in the motion for a new trial. Cowen v. Railroad, 48 Mo. 556; Gaines v. Frender, 82 Mo. 497; State v. Grimes, 101 Mo. 188; Haynes v. Trenton, 108 Mo. 123. (13) Indeed, objections to instructions can not for the first time be taken on a motion for a new trial. The record must show that exceptions were taken to them at the time they were given, otherwise they will not be entertained by the supreme court. Powers v. Allen, 14 Mo. 367; Dozier v. Jerman, 30 Mo. 216; State v. Elvins, 101 Mo. 243. Appellant could not have objected, at the time, to an instruction it asked itself; neither is it one of the grounds for which it asked a new trial below. (14) The following cases are cited in Judge Black's opinion, in support of the proposition that to give conflicting and inconsistent instructions is reversible error. Pond v. Wyman, 15 Mo. 181; Henschen v. O'Bannon, 56...

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