36 S.W. 646 (Mo. 1897), Vogg v. Missouri Pacific Railway Company

• Docket Number: .
• Citation: 138 Mo. 172,36 S.W. 646
• Date: 10 March 1897
• Parties: Vogg v. Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

Page 646

36 S.W. 646 (Mo. 1897)

138 Mo. 172

Vogg

v.

Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

March 10, 1897

Appeal from St. Louis Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed and remanded.

H. S. Priest and H. G. Herbel for appellant.

(1) The court erred in sustaining plaintiff's motion for a new trial on the ground that instruction number 5 given by it at the request of defendant was erroneous. Swain v. Railroad, 28 P. 829; McGrew v. Railroad, 109 Mo. 589; Bradford v. Floyd, 80 Mo. 207; R. S. 1889, sec. 2303; Fitzgerald v. Barker, 96 Mo. 665; Hurd v. Atkins, 29 P. 528; Patrick v. Skoman, 29 P. 21; Cleveland v. Miller, 53 N.W. 961; Railroad v. Morgan, 32 N.E. 85; Wallace v. Railroad, 16 S.E. 36. (2) Defendant's demurrers to the evidence should have been sustained on account of plaintiff's contributory negligence and of defendant's freedom from negligence. Maxey v. Railroad, 113 Mo. 1; Hyde v. Railroad, 110 Mo. 272; Williams v. Railroad, 96 Mo. 279; Hixson v. Railroad, 80 Mo. 340; Kelly v. Railroad, 88 Mo. 547. (3) The verdict was for the right party, and should not have been disturbed, for that reason. Fitzgerald v. Barker, 96 Mo. 665. Plaintiff's evidence shows that there was so much noise at the place where he was struck that he could not hear an engine bell ringing, and his own testimony shows that he did not look for trains before placing himself in dangerous proximity to the track, and that if he had looked he could have seen the train approaching him for at least two blocks or six hundred feet. There was no evidence adduced by plaintiff to prove that the train could have been stopped any quicker than it was, hence the conclusion, that plaintiff's injury was the result of his own carelessness, must inevitably follow.

Sterling P. Bond and A. R. Taylor for respondent.

(1) The court erred in permitting defendant's counsel to interrogate plaintiff on the question of change of venue. Dowling v. Allen & Co., 88 Mo. 300; Stearns v. Railroad, 94 Mo. 321; Vawter v. Hultz, 112 Mo. 639; 11 Greenlf. Ev. [12 Ed.], sec. 455; Philadelphia & T. R. Co. v. Stimpson, 39 U.S. 14 Pet. 448, see p. 459; People v. Brown, 72 N.Y. 574; People v. Oyer & Terminer Court, New York, 83 N.Y. 436; see 459; Gt. W. Turnpike Co. v. Loomis, 32 N.Y. 138. (2) It is error to give instructions that are contradictory. Price v. Railroad, 77 Mo. 512; Bluedorn v. Railroad, 108 Mo. 439-450. (3) An instruction is erroneous which directs the jury to consider positive and affirmative evidence in preference to that which is negative and circumstantial. Chubbuck v. Railroad, 77 Mo. 594; Murray v. Railroad, 101 Mo. 242. (4) It is not the law that a pedestrian should use other ordinary care than to look and listen, and an instruction which so declares is misleading. Zimmerman v. Railroad, 71 Mo. 476; George v. Railroad, 40 Mo.App. 447. (5) Though the plaintiff was negligent in going on the track, the railroad is still liable, if it knew, or by the exercise of ordinary care might have known, of the danger plaintiff was in, in time to have prevented the accident. Drain v. Railroad, 86 Mo. 582; Werner v. Railroad, 81 Mo. 368-374; Dickson v. Railroad, 104 Mo. 497; Isabel v. Railroad, 60 Mo. 481; Bergman v. Railroad, 88 Mo. 678; Maher v. Railroad, 64 Mo. 276; Dunkman v. Railroad, 95 Mo. 246; Guenther v. Railroad, 95 Mo. 286. (6) It is error to give conflicting instructions. Third for plaintiff, and fourth for defendant, and seventh for defendant, are conflicting. (7) An instruction should not be given which singles out one statement in evidence and directs a verdict on the truth of such statement in disregard of other evidence. Spohn v. Railroad, 87 Mo. 81. (8) An instruction should be refused where it assumes or ignores material facts. Maxwell v. Railroad, 85 Mo. 105; Stoher v. Railroad, 91 Mo. 509. (9) It was clear error to give instruction number 5 for defendant.

H. G. Herbel and H. S. Priest for appellant in reply.

(1) The defendant, on this appeal, has the right to insist that, under the pleadings and evidence, there was no case for the jury, and if this contention be established, the action of the court in awarding a new trial must be reversed. (2) There was no case for the jury under the pleadings and the evidence. Yancey v. Railroad, 93 Mo. 433; Boyd v. Railroad, 105 Mo. 371. (3) When the verdict is clearly right on the evidence, errors in instructions will be treated as harmless. R. S. 1889, sec. 2303; McGrew v. Railroad, 109 Mo. 589; Bradford v. Floyd, 80 Mo. 207; Gray v. Railroad, 64 Mo. 47; Sparling v. Conway, 75 Mo. 510; Frick v. Railroad, 75 Mo. 595-610; Tate v. Barcroft, 1 Mo. 163; Wear v. McCorkle, 1 Mo. 588; Swearingen v. Orine, 8 Mo. 707; Garesche v. Deane, 40 Mo. 168; Hedecker v. Ganzhorn, 50 Mo. 154; Dunbar v. Weightman, 51 Mo. 432; Jackson v. Magruder, 51 Mo. 55; Sinclair v. Bradley, 52 Mo. 180; Nelson v. Foster, 66 Mo. 381; Noble v. Blount, 77 Mo. 235; Sebree v. Patterson, 92 Mo. 451; Deal v. Cooper, 94 Mo. 62; Ghio v. Beard, 11 Mo.App. 21; Brown v. Railroad, 20 Mo.App. 427; Brooking v. Shinn, 25 Mo.App. 277; Hunter v. Transp. Co., 25 Mo.App. 660; Kortjohn v. Seimers, 29 Mo.App. 271; Bassett v. Glover, 31 Mo.App. 150; Standard Oil Co. v. Bretz, 98 Ind. 231; Cheek v. Waldron, 39 Mo.App. 21; Beiler v. Devoll, 40 Mo.App. 251.

OPINION

[138 Mo. 176] Sherwood, J.

Action by plaintiff for an injury suffered by him on the thirteenth day of August, 1891, in consequence of being struck in...