Moore v. Missouri Pac. Ry. Co.

• Decision Date: 01 February 1909
• Citation: 136 Mo. App. 210,116 S.W. 440
• Parties: MOORE v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

116 S.W. 440

136 Mo. App. 210

MOORE v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

February 1, 1909.

Rehearing Denied February 27, 1909.

1. NEGLIGENCE (§ 138)—INSTRUCTIONS.

Where a petition in an action for negligence is sufficient, and the evidence tends to support its allegations, an instruction as to the negligence of defendant need not be broader than the allegations of the petition and the scope of the evidence, and the jury need not be told what facts which the evidence tended to prove would amount to negligence, where the petition does not specify any particular acts which are charged as being negligent.

2. TRIAL (§ 256) — INSTRUCTIONS — REQUESTS FOR MORE SPECIFIC INSTRUCTIONS.

Instructions, which are good as far as they go, but do not cover the whole case, amount in civil cases only to nondirection, and not to error, and it is the duty of the other party to ask proper instructions to supply their shortcoming.

3. DAMAGES (§ 216)—INSTRUCTIONS—PERMANENT INJURIES—"CONTINUANCE."

In an action against a master for injuries to a servant, an instruction that, "if the jury find for the plaintiff in determining the damages, they may consider the bodily suffering and mental anguish endured by plaintiff since said injury in consequence thereof, the character and extent of said injury, and its continuance, together with loss of time, if any," does not authorize the jury to assess damages for permanent injury, as the word "continuance," while generally signifying permanency, does not bear that construction in the connection in which it is used.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Action by Frank Moore against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. D. Corum, for appellant. Chas. W. Journey and W. F. Johnson, for respondent.

BROADDUS, P. J.

The plaintiff's action is to recover damages as the result of an injury received while in the defendant's employ and alleged to have been occasioned by the negligence of a fellow servant. Plaintiff, with other laborers, was employed by defendant to unload sand from a car upon its tracks. On the occasion in question, the car, which plaintiff was assisting in unloading, was equipped with four trapdoors located in the bottom, two in front and two in the rear. These doors were at first only partially opened, just sufficiently to allow the sand to run gradually through, in order that the workmen who were beneath the car might be able to shovel the sand away as it fell upon the ground. Thus far there is no conflict of evidence. Plaintiff's evidence tends to show that he was standing in the rear of one of the trapdoors and in the rear end of the car, and, while he, with others, was shoveling the sand through the open space, one of his colaborers, who was working on the ground, suddenly threw open the trapdoors where he was working, which caused the sand resting on the doors and near around to rush through the opening, carrying the plaintiff along and precipitating him with violence upon an iron rod beneath the bed of the car. Several of his ribs were broken. He was confined to his bed several months and unable to perform his usual duties. He suffered pain from the injury for two or three months and at the time of trial complained of pain. The verdict was for the plaintiff for $500, from which defendant appealed. The defendant offered a demurrer to the plaintiff's...