Moss v. Jacksonville Coal Co.
| Decision Date | 13 December 1920 |
| Docket Number | No. 13742.,13742. |
| Parties | MOSS v. JACKSONVILLE COAL CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.
"Not to be officially published."
Action by Robert Moss against the Jacksonville Coal Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Aubrey R. Hammett, of Moberly, for appellant.
Otho F. Matthews and Ed. S. Jones, both of Macon, for respondent.
Plaintiff's action is for personal injury alleged to have been received by a rock falling upon him while in defendant's employ in assisting to operate one of its coal mines. The judgment in the trial court was for plaintiff in the sum of $1,000.
It appears that plaintiff, with an assistant, was engaged in laying or repairing a track in an entryway in defendant's mine, and that while so engaged a large rock fell from the roof of the entryway and injured him. Negligence on the part of defendant in not discovering the loose rock in the roof was properly alleged in the petition. A part of the damage claimed in the petition is for the sum of $250 expended for medical attention and treatment. The charge in the petition is in these words:
"Plaintiff further states that as a result of said injury he was compelled to expend a large sum of money, to wit, the sum of $250 for medical attention and treatment."
The court gave, over defendant's objection, an instruction, directing the jury in allowing damages to take into consideration "any expenditure that he has been compelled to make, or will be compelled to make, for medical attention and treatment." This was error. No claim was made in the petition for future expenditures. Muth v. St. Louis River Co., 87 Mo. App. 422, 432, and cases cited; Dent v. Traction Co., 145 Mo. App. 61, 69, 129 S. W. 1044; Gibbs v. Light Co., 142 Mo. App. 19, 25, 125 S. W. 840; Nelson v. Railroad, 113 Mo. App. 659, 661, 88 S. W. 781; Stanley v. Railroad, 112 Mo. App. 601, 608, 87 S. W. 112; La Duke v. Dexter, 202 S. W. 254, 257. It is ruled in Degonia v. Railroad, 224 Mo. 564, 589, 123 S. W. 807, that an instruction cannot be broader than the pleading. State ex rel. v. Ellison, 270 Mo. 645, 653, 195 S. W. 722. The defense made of this instruction in no way relieves it of error.
Defendant makes many other. points against the judgment, but has not braced them with authorities, and hence we need not notice them further than to say that its demurrer to the evidence...
To continue reading
Request your trial
-
Davis v. City of Independence.
...675; Field v. Met. St. Ry. Co., 137 S.W. 1000; McDonald v. Railroad, 165 Mo. App. 75; Smoot v. Kansas City, 194 Mo. 513; Mass v. Jacksonville Coal Co., 226 S.W. 592; Finley v. United Rys. Co., 141 S.W. 866; Heinz v. Railroad, 143 Mo. App. 38, 122 S.W. 346; Smith v. Ry. Co., 285 S.W. 524. (8......
-
The National Cash Register Co., a Corp. v. Layton
... ... Scrivner v. Mo. P. Ry., 169 S.W. 83, 260 Mo. 421; ... Rawlings v. Frisco Ry., 175 S.W. 935; Moss v ... Jacksonville Co., 226 S.W. 592. (10) Where vendor ... receives goods returned by vendor ... ...
-
Citizens' Bank of Sikeston v. Scott County Milling Company
...494, 161 Mo.App. 168; Scrivner v. Mo. P. Ry., 169 S.W. 83, 260 Mo. 421; Rawlings v. Frisco Ry., 175 S.W. 935 (not off. rep.); Moss v. Jacksonville Co., 226 S.W. 592. Instruction must be within both the proof and the pleadings, and must not be broader than the proof, though the pleadings wou......
-
Lumsden v. Howard
...Harnden, 153 Mo.App. 381, 134 S.W. 43. (3) An instruction must not be broader than the pleadings, and if it is, is erroneous. Moss v. Jacksonville Co., 226 S.W. 592; Rawlings v. Frisco Ry., 175 S.W. 935; Scrivner v. Mo. P., 169 S.W. 83, 260 Mo. 421. (4) An instruction must not be broader th......