34 S.W. 581 (Mo. 1896), Taylor v. Scherpe & Koken Architectural Iron Co.

Citation:34 S.W. 581, 133 Mo. 349
Opinion Judge:Robinson, J.
Party Name:Taylor et al. v. Scherpe & Koken Architectural Iron Company, Appellant
Attorney:B. Schnurmacher for appellant. Edmond A. B. Garesche and Frank A. Hobein for respondent.
Judge Panel:Robinson, J. Macfarlane, J., concurs. Brace, C. J., and Barclay, J., concur in the result.
Case Date:March 10, 1896
Court:Supreme Court of Missouri

Page 581

34 S.W. 581 (Mo. 1896)

133 Mo. 349

Taylor et al.


Scherpe & Koken Architectural Iron Company, Appellant

Supreme Court of Missouri, First Division

March 10, 1896

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.


B. Schnurmacher for appellant.

(1) The action being based on the charge that the plaintiff, Mary Taylor, was injured through negligent, careless, and reckless driving of defendant's servant, and all of the evidence taken together having failed to establish that charge, but proving on the contrary that the defendant's servant instead of driving the horse, was being run away with at the time, and was exercising every reasonable effort to avoid doing injury, the court should have sustained the demurrer to the evidence and should have directed a verdict for defendant. Rutledge v. Railroad, 123 Mo. 121; Hyde v. Railroad, 110 Mo. 272. The evidence of negligence offered by plaintiffs was of a negative character; the positive evidence offered by defendant showed there was no negligence. Upon this state of facts a peremptory verdict for defendant was highly proper. Hayes v. Railroad, 51 Mo.App. 438. (2) The court erred in refusing to permit the witness Jentzsch, defendant's employee, to testify whether or not he had intentionally driven into plaintiff. The petition alleges that the accident could not have occurred "save through the gross mismanagement and carelessness amounting to criminal neglect on the part of the servant of defendant." This was equivalent to an allegation that the injury had been wantonly and intentionally inflicted. Defendant was therefore entitled to show by its employee the contrary. (3) The court erred in the giving of instruction number 1 for plaintiff, in that it submitted to the jury the question of whether or not the defendant "carelessly and negligently drove and managed said wagon and horse." There was no proof of carelessness or negligence and therefore nothing in the evidence to support this instruction. (4) The court erred in giving instruction number 3 on the measure of damages on behalf of the plaintiffs. First. This instruction assumes that there was physical injury inflicted on plaintiff and that she endured mental anguish, although these facts were put in issue by the pleadings and left in doubt by the proof. Second. The instruction failed to point out to the jury the proper elements of damage in the event of a finding for plaintiffs. Third. The instruction is further erroneous in referring the jury to "the acts herein complained of." Fourth. It was error for the court to warrant the jury by this instruction to add anything to their verdict for permanent personal injuries. There is no evidence in the case tending to show any damage or injury to plaintiff Mary Taylor, permanent in its character, and therefore that much of the instruction is without support in the proof. (5) The court erred in overruling the defendant's motion for new trial, because the verdict is against the evidence; because the court erred in excluding the testimony of defendant's employee upon the question of intention, and because the court erred in its instructions.

Edmond A. B. Garesche and Frank A. Hobein for respondent.

(1) All of the facts prove that the horse was not running away, and that the appellant's servant had such control of him as to have been able to avoid the accident by the use of ordinary care. To support his argument to the contrary, appellant's counsel has been forced to ignore the facts as they appear in the record; to rely upon inferences or opinions of witnesses, which were in no sense competent, and which were opposed to the facts to which these very witnesses testified and finally to deny to the jury the right to draw inferences themselves adverse to the positive statement of the appellant's servant, whose recklessness caused the injury to respondent. "While negligence is an affirmative fact to be established by proof, yet that proof may often be supplied by reasonable inference from other facts in evidence." Rutledge v. Railroad, 123 Mo. 121-136. "A jury is not bound to credit the testimony of unimpeached witnesses, if there be circumstantial evidence inconsistent with such evidence." Hill v. Scott, 38 Mo.App. 370. Even in criminal cases, cases involving liberty and life, this court has repeatedly ruled that, if a party testify directly in the face of, and in opposition to, obvious physical facts, neither courts nor juries are bound to stultify themselves by giving credence to such testimony. Baker v. Railroad, 122 Mo. 593; Hunt v. Railroad, 14 Mo.App. 160. In such matters courts must defer to the findings of jurors, as it is their peculiar province to determine them. Peck v. Railroad, 31 Mo.App. 123; Tyler v. Hall, 106 Mo. 313; Dowling v. Allen, 102 Mo. 213. (2) There was no issue framed by the pleadings in this case justifying the assumption that appellant's servant was charged with a willful premeditated tort. The allegation in the petition upon which appellant's counsel depends to support this branch of his argument was a mere recital, and the answer being a general denial no such issue as he contends for was framed by the pleadings. Bliss on Code Pleadings, sec. 318. (3) Where in an action for damages, a party does not ask an instruction, for the guidance of the jury, defining the measure of damages, he will not be in position on appeal to criticise one given for the other party. Browning v. Railroad, 124 Mo. 55. (4) Where no evidence is offered to disprove facts testified to, the court should, in the instructions, assume their truth. Fullerton v. Fordyce, 121 Mo. 1. The assumption of a fact, in an instruction, of which there is some proof, where there is no countervailing evidence as to that fact, is not reversible error. Dickson v. Railroad, 104 Mo. 491. (5) The objection that the instruction is too general in its scope, and does not properly advise the jury of the proper elements of damage which they are to take into consideration, is answered by the Browning case, supra. In addition, the very cases the appellant cites in his brief support the position that there must be other concurrent error to effect a reversal on this ground. Stevens v. Railroad, 96 Mo. 207; Hawes v. Stock Yards Co., 103 Mo. 60; McGowan v. Co., 109 Mo. 518. (6) The words "herein complained of" at the end of the instruction were used only for the purpose of shortening it and could not possibly have been understood by the jurors, to refer to the petition. The adverb herein, when viewed from a grammatical standpoint, had reference to the instructions, and, if not to them...

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