Larkin v. Wells, 21083.

• Decision Date: 05 January 1932
• Docket Number: No. 21083.,21083.
• Citation: 44 S.W.2d 882
• Parties: LARKIN v. WELLS et al.
• Court: Missouri Court of Appeals

44 S.W.2d 882

LARKIN v. WELLS et al.

No. 21083.

St. Louis Court of Appeals. Missouri.

January 5, 1932.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Suit by Ida M. Larkin against Rolla Wells, receiver of the United Railways Company of St. Louis, and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

See, also (Mo. App.) 12 S.W.(2d) 510.

Hyman G. Stein and Earl M. Pirkey, both of St. Louis, for appellant.

T. E. Francis and B. G. Carpenter, both of St. Louis, for respondents.

SUTTON, C.

This is a suit for damages for personal injuries.

The evidence on behalf of plaintiff tends to show that, while she was a passenger on defendants' west-bound Park avenue street car, on Grand avenue, in St. Louis, the street car sustained an unusual shock or jerk, and thereby threw her against a seat and injured her.

The evidence for the defendants tends to show that there was no unusual shock or jerk of the car, and that plaintiff was not injured.

The trial, with a jury, resulted in a verdict and judgment for defendants, and plaintiff appeals.

Plaintiff complains of the action of the court in striking out an answer made by her on cross-examination. The answer was stricken out as not being responsive to the question propounded. We think the answer was not improperly stricken. Aside from this, we are unable to see how the plaintiff could have been harmed by the striking of the answer, for if it was competent, and she desired it to go to the jury, it could have been brought out by proper interrogation on further examination by her counsel.

Plaintiff complains of the action of the court in modifying her instruction No. 1, and in giving the same to the jury as modified. We do not regard the modification as prejudicially erroneous. Aside from this, the action of the court in making the modification was not brought to the attention of the court in any manner, in the motion for a new trial, and it is, therefore, not properly before us for review.

Plaintiff complains of instruction No. 4, given at the instance of the defendants, advising the jury that the burden is upon the plaintiff, to prove, by the greater weight of the evidence, that the street car on which she was a passenger sustained an unusual shock or jerk, and that if the plaintiff has not met this burden, then that ends their consideration of the case, as it would become their duty to return a verdict for the defendants. Plaintiff, in her original brief, complains of this instruction as follows: "Instruction 4 is erroneous. Watson v. Chicago Great Western R. Co., 221 Mo. App. 621, 287 S. W. 813." The case cited clearly does not condemn, but rather sanctions, the present instruction. However, in her reply brief, plaintiff makes the further suggestion that the instruction indicates to the jury that they must consider first whether or not the street car sustained an unusual shock or jerk, and does not permit them to consider all the evidence in the case on that issue, citing Ryan v. Burrow (Mo. Sup.) 33 S. W.(2d) 928. It is obvious that the instruction does not tell the jury that they must consider first whether or not the street car sustained an unusual shock or jerk, nor does it preclude them from considering all of the evidence in the case in deciding that issue. Of course, if the jury, after having considered all of the evidence in the case, arrived at the conclusion that there was no unusual shock or jerk of the car, then there was nothing else for them to do but to bring in a verdict for the defendants, just as the instruction told them. The instruction condemned in the case cited, in express terms directed the jury that it was their duty to decide first upon the question as to whether or not there was any liability on the part of the defendants, and that until such question of liability had been decided, they had no right to take into consideration the nature, character, or extent of the plaintiff's injuries. The court condemned the instruction on the obvious ground that the jury were entitled to consider the nature, character, and extent of the plaintiff's injuries, in deciding upon the question of defendants' liability; whereas, the instruction precluded consideration of such injuries in deciding the question of liability. We are not persuaded that the instruction in the present case, when read in connection with the instructions given on behalf of the plaintiff, could have misled the jury, but if plaintiff feared that the jury might be misled, she should have asked a further instruction defining in more explicit terms, her theory of the law. Nelson v. Heinz Stove Co., 320 Mo. 655, 8 S.W.(2d) 918, loc. cit. 920. There was no positive misdirection in the instruction complained of. It would have been consistent with any proper instruction as to plaintiff's theory of the law.

Defendant's instruction No. 6 is...