Schaabs v. Woodburn Sarven Wheel Co.
| Citation | 56 Mo. 173 |
| Parties | JOHN H. SCHAABS, Plaintiff in Error, v. THE WOODBURN SARVEN WHEEL COMPANY, Defendant in Error. |
| Decision Date | 31 March 1874 |
| Court | United States State Supreme Court of Missouri |
Error to St. Louis Circuit Court.
Hitchcock, Lubke & Player, for Plaintiff in Error.
S. N. Taylor & Hamilton Moore, for Defendant in Error.ADAMS, Judge, delivered the opinion of the court.
This was an action for damages occasioned by the collision of plaintiff's and defendant's wagons on 14th street in the City of St. Louis.
The plaintiff's petition charges that the accident occurred by the negligence of defendant's driver, and contains two counts; one claiming damages for injuries to plaintiff's wagon and the other for injuries to his person. The answer of defendant denied all negligence on the part of its driver, and charged that the accident occurred by plaintiff's own fault.
The plaintiff's wagon was a light one horse vehicle, the defendant's, a large platform transfer wagon. The evidence was contradictory. On the part of the plaintiff, it tended to prove his case, and on the part of the defendant, it conduced to prove that the plaintiff himself was the occasion of the collision.
The plaintiff asked an instruction, which was given, telling jury to find on each count if they found for plaintiff. The court then gave on its own motion one instruction, and four at the instance of the defendant, which are as follows:
Instruction for plaintiff given by the court on its own moion.
“The jury are instructed that the plaintiff is entitled to recover against the defendant in this case, if, from the evidence adduced before them, they believe that the plaintiff was the owner of the horse and wagon which he was driving, at the time of the collision with defendant's team; that he was driving the same with proper care and caution upon the public streets of the City of St. Louis; that the defendant's driver through carelessness or unskillfulness drove the defendant's team against plaintiff's wagon, and that plaintiff in direct consequence of such collision was injured in his person or property as alleged in the petition.”
Instructions given for defendant.
1. “The court instructs the jury that the gist of plaintiff's action in this case is negligence, and the plaintiff cannot recover unless the evidence shows a case of negligence on the part of the defendant, and if the jury find from the evidence that both parties, by their negligence, immediately contributed to produce the injury, the plaintiff cannot recover, and the verdict should be for the defendant.
2. The court instructs the jury that if they find, from the evidence, that, at the time of the collision between the wagons of plaintiff and defendant, the team of defendant was moving on a walk, and near the east side of Fourteenth street, and that there was a wide space open to the west of the defendant's wagon, and that the street was clear and unobstructed on that side, so that plaintiff, before the collision, by reasonable care and diligence could have reined his horse to the left, and thus avoided the accident, and that it was owing in part to plaintiff's carelessness and negligence in not so reining his horse that the accident was caused, they should find for the defendant.”
3. “The court instructs the jury that if they find from the evidence that the immediate cause of the plaintiff being thrown from his wagon and receiving the injuries complained of, in his second cause of action, was his holding to the lines after his horse broke loose from his wagon, the verdict should be for the defendant on said count, even though the jury should find for plaintiff on his first cause of action.”
4. “Though the jury believe, from the evidence, that the wagon of the defendant was on the wrong side of the road, yet if there was plenty of room for plaintiff to pass it, without a collision, by reining his horse a little to the other side, and that plaintiff was careless and negligent in not so reining his horse, he cannot recover, and the...
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