Johnston v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 05 March 1906
• Citation: 117 Mo. App. 308,93 S.W. 866
• Court: Missouri Court of Appeals
• Parties: JOHNSTON v. ATCHISON, T. & S. F. RY. CO.

93 S.W. 866

117 Mo. App. 308

JOHNSTON v. ATCHISON, T. & S. F. RY. CO.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. NEGLIGENCE — IMPUTED NEGLIGENCE — DRIVER OF TEAM.

Where plaintiff hired a team of mules and their driver to a railroad company, and one of the mules was killed by a train, there could be no recovery therefor if the driver's conduct in the management and control of the team was not that of an ordinarily prudent and careful driver under the circumstances at the time.

2. TRIAL—INSTRUCTIONS.

The court, in giving instructions, should omit matter of argument, assumptions of matters not appearing in evidence, and all descriptive matter of things not appearing in proof.

3. RAILROADS — INJURIES TO ANIMALS — INSTRUCTION.

In an action for the killing of a mule by a passing train, an instruction referring to defendant's negligence should state what constitutes negligence.

4. SAME.

An instruction in an action for the killing of a mule by a passing train, in referring to defendant's negligence, should include the hypothesis whether the negligence was the cause of the killing of the mule.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Malinda Johnston against the Atchison, Topeka & Santa Fé Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Thomas R. Morrow, S. W. Moore, and Samuel W. Sawyer, for appellant. Paxton & Rose, for respondent.

ELLISON, J.

Plaintiff hired a team of mules and their driver to defendant to work on the repair of its roadbed in Jackson county. One of the mules was killed by defendant's passing train, in consequence of an alleged negligent order of defendant's foreman in directing the driver to take the team into a place of danger. The judgment was for plaintiff for the value of the mule.

Contributory negligence of plaintiff's driver was pleaded by defendant. Notwithstanding such plea, plaintiff obtained an instruction covering every phase of her case, and, on such hypothetical state of facts (wholly omitting any proviso as to the driver's negligence), peremptorily directed a verdict for her. If the driver's conduct in the management and control of the team was not that of an ordinarily prudent and careful driver in the circumstances at the time, there can be no recovery. It was, therefore, error to give the instruction, thus purporting to cover the whole case, and directing a verdict thereon without including in it a proviso as to...