Lemon v. Chanslor

• Decision Date: 31 October 1878
• Citation: 68 Mo. 340
• Parties: LEMON v. CHANSLOR et al., Appellants.
• Court: Missouri Supreme Court

68 Mo. 340

LEMON

v.CHANSLOR et al., Appellants.

Supreme Court of Missouri.

October Term, 1878.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Saline Circuit Court.--HON. WM. T. WOOD, Judge.

The following instructions were given for plaintiff:

1. If the jury believe from the evidence that on the 3rd day of February, 1874, the defendants, in conjunction with their livery stable, were engaged in the business of running hacks, coaches and omnibuses to and from the Missouri Pacific Railroad to and from the different points in Lexington, for the conveyance of persons for hire, then they were bound to provide safe, staunch and roadworthy conveyances, with careful drivers, so far as human foresight, skill and knowledge and care could provide, and they are responsible for all injuries arising from slight negligence on the part of themselves, their agents or servants; if, therefore, the jury believe from the evidence that on the 3rd day of February, 1874, plaintiff took passage in one of the coaches of defendants, that while the same was being driven at a moderate gait it suddenly broke down by reason of the front axle breaking, or other cause, and that the hack was turned over and the plaintiff injured thereby, then it rests on the defendants to prove to your satisfaction that said hack was safe, sound, roadworthy, not overloaded and carefully driven, and that said axle broke, and said accident arose from and was caused by inevitable accident or defect that could not have been seen, detected or known to defendants, their servants or agents, by the exercise of the utmost skill, knowledge, foresight, care, inspection and examination of said coach by defendants, their agents or servants, and unless the jury so believe they will find for plaintiff.

2. If the jury believe from the evidence that on February 3rd, 1874, the defendants were engaged in the business of transporting passengers from the railroad depot in Lexington to any and all points of said city, and that on said day the plaintiff was received by them, or their agents at said depot to be carried on one of the hacks of defendants, and that while being so transported on said hack plaintiff was injured by reason of the breaking of an axle on said hack, then the burthen of proof rests upon defendants to prove to the satisfaction of the jury that said break-down was caused by inevitable accident and not from any defect, imperfection in the hack, overloading or careless driving, and that by the exercise of the utmost human foresight, knowledge, skill and care, such injury could not have been prevented by defendants, their agents or servants, and unless the jury so believe they will find for the plaintiff.

3. Even though the jury may believe from the evidence that plaintiff did not pay, and did not expect to pay any fare for riding on defendants' hack on the day the break-down occurred, they are instructed that said fact does not affect the issues in this case, and is no defense on the part of defendants, but the jury are instructed, that if they believe from the evidence that plaintiff was the conductor on the express train, that defendants run hacks and busses in connection with the coming in and departing of said trains, that defendants sold tickets on the train, and that plaintiff was in the habit of telegraphing, before arriving at Lexington, notifying defendants of the number of persons on his train, and of the number of conveyances they could expect to find employment to carry; that in consideration of said services so rendered by plaintiff, the defendants allowed him to ride in their conveyances without paying fare therefor, then plaintiff was not a free or gratuitous passenger.

4. Even though the jury may believe from the evidence that on the morning said hack started to the depot the axle and spindles thereof, so far as human foresight, knowledge, care and skill could detect, were sound, safe and roadworthy, yet, if the jury should further believe from the evidence that while said hack was run and used in the business of defendants on said trip, and while the roads were rough and frozen, the said hack was, for the character of the roads, loaded beyond what a safe and prudent man would have placed on the same, or that from the carelessness of the driver while on said trip in either overloading the hack or in driving said hack on said trip, and that by reason of said load or of the conduct of the driver said hack was broken down and the plaintiff injured, then the jury will find for the plaintiff.

5. If the jury should find for the plaintiff, they will assess the damages at such sum not exceeding $5,000, as they may think will compensate plaintiff for loss of time, amount paid for medical attendance and all mental and bodily pain and anguish they may believe he has suffered, together with such sum or sums as will compensate plaintiff for any permanent injury or incapacity, they may believe he has sustained by and from such injuries so received.

The following instructions were asked by the defendants, all of which, with the exception of the first and sixth, were given by the court:

1. The jury are instructed that this is a suit brought by plaintiff against defendants for damages for an alleged injury to the knee and leg of plaintiff, charged to have been caused by the recklessness and negligence of defendants in using a hack in their business of carrying passengers to and from the depot of the Missouri Pacific Railroad at Lexington, Missouri, in which plaintiff claims to have been a passenger on the 3rd day of February, 1874, and which hack is charged by plaintiff to have been then and there unsound, unsafe and unfit for use; and plaintiff claims to have been injured by the breaking down of such hack, owing to the unsafe and unsound condition and the negligence of defendants in the using of the same in such unsafe and unsound condition; and unless the jury believe from the evidence that said hack was unsound and unsafe, and that the alleged injury to the leg and knee of plaintiff was caused by the negligence of defendants in using of the same in such unsound and unsafe condition for the transportation of passengers, the jury will find for the defendants.

2. If the jury believe from the evidence that, at the time of the injury complained of by plaintiff, the defendants were the owners and keepers of a livery stable in the city of Lexington, Missouri, and as part of their business ran a hack or hacks, or an omnibus, to and from the depot of the Lexington & Sedalia branch of the Missouri Pacific Railroad, and the business portion of said city, near the City Hotel, and that plaintiff, according to his custom, on the morning of the 3rd day of February, 1874, on the arrival of the train of which he was conductor, at such depot, entered one of the vehicles, to-wit: a hack of defendants, with the passengers, to ride to the business part of said city, near the City Hotel, and that after going a short distance the left spindle of the front axle of such hack suddenly, and without warning to the driver and manager of such hack, broke off at the shoulder thereof, and that plaintiff, who was riding on the front seat with the driver, fell from such hack and was injured in his leg and knee by the falling of the forepart of such hack on his leg; yet if the jury further believe from the evidence that such hack was sound, sufficient, roadworthy and safe, so far as could be seen or known by minute and careful examination, and that the same was drawn by good and sufficient and well trained and gentle horses, with suitable trappings and equipments for such hack and horses, and that the same were driven by an experienced, competent, safe and careful driver, on the usually traveled route, at a moderate rate of speed, and that such hack was not overloaded, and that the breakage of such spindle occurred accidently and without the fault or negligence of defendants, or their servants or agents, while such hack was being used, managed and driven in a careful, skillful and proper manner, from some cause imperceptible and unknown to defendants, and which the utmost skill, care and diligence could not foresee, then and in such case, defendants are not liable to plaintiff in the suit, and thc jury will find for the defendants.

3. Although the jury may believe from the evidence that plaintiff, on the 3rd day of February, 1874, was injured by the breaking of the left front spindle of a hack of dnfendants, and the falling of a part of said hack on the leg of plaintiff, in the falling of such hack caused by the breaking of such spindle, yet, if the jury further believe from the evidence that the breaking of such spindle occurred accidentally from some cause or causes, imperceptible and unknown to defendants, and which the utmost skill, foresight and diligence could not prevent, then the defendants are not liable to plaintiff in this suit, and the jury will find for the defendants.

4. The jury are instructed, that if they believe from the evidence that the breaking of the spindle of defendants' hack at the time of the injury complained of by plaintiff, was accidental, and such as human foresight and prudence could not have foreseen or guarded against, or such as did not result from the negligence of defendants or their servants defendants are not liable in this action.

5. The jury are instructed that whatever the injuries received by plaintiff may be, yet, defendants are not liable therefor unless such injuries resulted from the negligence or misconduct of defendants, or their servants, and unless the jury believe from the evidence that such negligence or misconduct existed at the time, they must find for defendants.

6. Although the jury may believe from the evidence that defendants were, at the time of the injury received by plaintiff, engaged in the business of carrying passengers to and from the depot at the city of Lexington, or other place, yet if the jury further believe from the evidence that...