Kribs v. Jefferson City Light, Heat & Power Co.

• Decision Date: 10 November 1919
• Docket Number: No. 13360.,13360.
• Court: Missouri Court of Appeals
• Parties: KRIBS et ux. v. JEFFERSON CITY LIGHT, HEAT & POWER CO.

215 S.W. 762

KRIBS et ux. v. JEFFERSON CITY LIGHT, HEAT & POWER CO.

No. 13360.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

"Not to be officially published."

Action by Theodore Kribs and Seeville Kribs, his wife, against the Jefferson City Light, Heat & Power Company. From judgment for plaintiffs, defendant appeals. Reversed, and cause remanded.

Irwin & Haley, of Jefferson City, for appellant.

Jas. H. Whitecotton, of Moberly, and A. T. Dumm, of Jefferson City, for respondents.

BLAND, J.

This is the second appeal in this case. See Kribs v. Jefferson City Light, Heat & Power Co., 199 S. W. 261. Defendant claims that the court erred in refusing to sustain its demurrer to the evidence. The facts developed at this trial are substantially the same as those shown at the other. As we are convinced that our decision on this question in the former appeal was correct, defendant's point will again be ruled against it. Trent v. Lechtman, 107 Mo. App. 540, 152 S. W. 376.

Complaint is made of plaintiff's instruction A. This instruction is on the subject of the burden of proof and told the jury that the burden is on the defendant to show contributory negligence, and in considering the question of deceased's negligence "the jury will have the right to take into consideration the age of plaintiff's said son, Robert O. Kribs, in determining whether or not said Robert O. Kribs was guilty of contributory negligence which resulted in his death." An instruction worded as this one has been held to be erroneous and to constitute reversible error, for the reason that such an instruction permits the jury to take into consideration deceased's age without considering his intelligence, capacity, experience, or knowledge of the dangers attending the situation. Fink v. Rd., 161 Mo. App. 314, 143 S. W. 568; Cherry v. Rd., 163 Mo. App. 53, 145 S. W. 837. Instruction B contains the same error.

The court erred in giving defendant's instruction No. 7 as modified. The instruction is as follows:

"The court instructs the jury that before you can find for the plaintiff you must find from the preponderance of the evidence that the defendant was guilty of some act of negligence in the performance of some duty which it owed to the deceased, and that that act of negligence was the proximate cause of the injury independent of any act of negligence on the part of the deceased. By proximate cause, you will understand to mean the immediate and direct cause without any contributory act of the deceased." (Italics ours.)

"A proximate cause in the law of negligence is such a cause as operates to produce particular consequences, without the intervention of any independent unforeseen cause, without which the injuries would not have occurred." Glenn v. Street Ry. Co., 167 Mo. App. 109,...