Henry v. Illinois Cent. R. Co.
| Citation | 282 S.W. 423 |
| Decision Date | 09 April 1926 |
| Docket Number | 24997 |
| Parties | HENRY v. ILLINOIS CENT. R. CO |
| Court | United States State Supreme Court of Missouri |
Sidney Thorne Able, Charles P. Noell, Foristel, Mudd, Hezel & Habenicht and James T. Blair, all of St. Louis, for appellant.
Watts & Gentry, of St. Louis, for respondent.
In Banc.
This is a suit for personal injuries brought by the next friend of the plaintiff, a minor, who is the injured party. Upon a trial to a jury there was a verdict for the plaintiff in the sum of $ 22,500. The trial court sustained a motion for a new trial, and from this order the plaintiff appeals.
The plaintiff was a boy eight years of age and was living with his parents in the city of Belleville, Ill., at the time of the injury. On a Sunday afternoon the plaintiff and his brother, three years older, and another boy, started to the home of the latter. To reach their destination it was necessary for them to cross the railway tracks of the defendant. The older boys ran, outdistanced the plaintiff and crossed the tracks in safety. The plaintiff, who was tired and crying, stopped when he reached the tracks and was struck and injured by one of the defendant's freight trains, which came up behind him. He was struck by some portion of the front part of the engine, dragged about 80 feet, and dropped to the ground. He arose and attempted to proceed in the direction in which the other boys had gone. Upon hearing his screams they came back to him. His left arm was crushed and the greater portion of the flesh was torn from it down to his fingers. The injuries were such as to necessitate an amputation which was made at a point about four inches below the shoulder.
Plaintiff's evidence tended to show that the train was running at 15 miles per hour and that no bell was ringing. Illinois statutes and ordinances of the city of Belleville were introduced regulating the speed of trains and requiring the giving of warnings of their approach at a crossing.
The defendant's evidence that the train was running at a speed of not exceeding 6 miles per hour; that the bell was ringing, and although those on the engine were on the lookout, they did not see the boy. There was also evidence introduced by the defendant that the boy had crossed the tracks and had proceeded a short distance when he ran back toward the track and appeared to attempt to catch hold of a car in the passing train; that this attempt occurred at some distance from the crossing. I. The granting of a new trial by the circuit court is the matter primarily to be considered. Respective counsel have given much consideration to the discussion of this question. Among other things urged in the motion is the character of plaintiff's instruction No. 1, the excessiveness of the verdict, and the alleged improper conduct of plaintiff's counsel in interrupting counsel for the defendant during the argument of the latter to the jury. These in their order.
Plaintiff's instruction No. 1 occupies three pages of the abstract. It incorporates a section from the ordinances of the city of Belleville in regard to the speed of railroad trains within the corporate limits of that city, and a section from the statutes of Illinois embodying a like regulation of such trains within the corporate limits of any municipality in the state, and instructs the jury as a condition precedent to the rendition of their verdict that they may determine whether these municipal and state regulations were in existence at the time of plaintiff's injury. More particularly stated, the jury is required to find whether or not there was in existence at the time of this accident a certain ordinance of the city of Belleville, therein set forth, requiring railroad trains to continuously ring a bell while passing through said city, and also if a state statute, therein set forth, was in existence at the time of the accident, requiring railroad trains to ring a bell or sound a whistle when approaching a public highway. After setting forth with great detail the plaintiff's evidence, the jury is instructed, if they find the same to be true and the ordinance and statutes to be in existence as stated, they will find for the plaintiff.
Brevity in form and definiteness in statement are two of the requisites of a proper instruction; these essentials the courts of review have ever sought to promote and encourage. Despite these cardinal requirements, which have been iterated and reiterated by this court, instruction No. 1 is found to possess neither. It is burdened with details which can only tend to confuse rather than clarify the issues the jury is required to consider. But these defects alone, although obstacles, rather than aids to the jury, will not usually authorize an interference with the verdict and the granting of a new trial. Wolfe v. Payne, 241 S.W. loc. cit. 919, 294 Mo. 170, and cases.
The instruction, however, presents another defect. Not content with stating the issues joined by the pleadings, upon which testimony had been offered and...
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