McKeon v. Citizens' Ry. Co.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: CURRIER
• Citation: 43 Mo. 405
• Parties: EDWARD MCKEON, Respondent, v. CITIZENS' RAILWAY COMPANY, Appellant.
• Decision Date: 31 March 1869

43 Mo. 405

EDWARD MCKEON, Respondent,
v.
CITIZENS' RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Cline, Jamison & Day, for appellant.

The court below erred in giving the last instruction, at its own instance, after the jury had retired and were unable to agree upon a verdict, as it had a direct tendency to mislead them and draw their attention off from the doctrine of contributory negligence raised by the proof in the cause. The instruction purports to make a complete case of liability in the company where an injury occurs to a passenger (notwithstanding the passenger may have contributed directly to bring about the injury), if such injury could in any way be traced to or might have been prevented by the employment of a greater number of agents and employees on board of the train. If the party injured contributed directly to his own misfortune, he cannot recover, even though the negligence of the company consisted in a lack of a proper number of servants and agents on board of the car in which the party was being carried. This is the settled law of this State. (Huelsenkamp v. Citizens' Railw. Co., 34 Mo. 45; Boland and Wife v. Mo. R.R. Co., 36 Mo. 484.)

Hudgins & Son, for respondent.

The instruction given by the court on its own motion is to be taken in connection and construed with those given at the instance of plaintiff and defendant. One of defendant's instructions, given

[43 Mo. 406]

at his own instance, had declared that, if plaintiff in any manner contributed to the injury, he cannot recover. Take these together, and the whole objection of appellant is destroyed. The objection is founded on the theory that each instruction must contain the whole law applicable to every phase of the case. This is erroneous; the instructions given by the court are to be construed all together as one entire charge. Those of the plaintiff may modify those of the defendant, and vice versa; and while one instruction, if given by itself, might be erroneous because it did not contain all the law, yet, if modified by other instructions which declare fully the law of the case, there is no error.

CURRIER, Judge, delivered the...