Porter v. Harrison

• Decision Date: 31 March 1873
• Citation: 52 Mo. 524
• Parties: HENRY PORTER, Respondent, v. CHARLES H. HARRISON, Appellant.
• Court: Missouri Supreme Court

52 Mo. 524

HENRY PORTER, Respondent,

v.CHARLES H. HARRISON, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

M. W. Hogan, for Appellant.

Horatio D. Wood, for Respondent.

The instructions given for the plaintiff and defendant fully present the law, and it is not necessary that all the principles of law relating to the case should be presented in any one of the instructions given by either party. (McKeon vs. Citizens Railway Co., 43 Mo., 405; Moore vs. Sauborin, 42 Mo., 490; Marshall vs. Thames Fire Ins. Co., 43 Mo., 586.)

VORIES, Judge, delivered the opinion of the court.

The plaintiff charges, that his horses, which being hitched or harnessed to his wagon, were securely hitched with a strap on Tenth street, on which street, it being a public highway, he was driving and had occasion to stop, and that the defendant was possessed of a carriage and horses, which were also at said time being driven and conducted along said street by a servant in the employ of defendant for that purpose; that by the negligence and carelessness of the said servant of the deendants, his said carriage was driven upon and against said wagon of plaintiff, thereby causing plaintiff's horses to break loose from where they were hitched and run away with said wagon, whereby the horses were injured, the wagon broken; and that plaintiff was bruised and injured in attempting to hold and secure his said team and wagon, and for all which he asked a judgment for damages.

The defendant denied the allegations in the petition, and charged that the injury, if any, happened by reason of the negligence of plaintiff. The plaintiff replied, and denied the negligence charged against him.

The cause was tried before a jury. The jury found a verdict for plaintiff for one hundred and seventy five dollars. Judgment was rendered on the verdict.

The plaintiff at the trial introduced evidence which tended to prove the facts stated in the petition, and tended to prove that the injury accrued by the negligent driving of defendant's team and carriage by defendant's servant.

The defendant gave evidence tending to prove, that his servant was not negligent, and also to prove that plaintiff's horses were not hitched or properly secured.

At the close of the evidence, the court on the part of the plaintiff instructed the jury: 1st. “If the jury believe from the evidence, that one Gerius while employed by the defendant, negligently drove into plaintiff's wagon, thereby causing said plaintiff injury, then the plaintiff is entitled to recover.”

2nd. “If the jury find for the plaintiff, they will assess the damages at such sum, not exceeding the amount claimed in the petition, as will compensate the plaintiff for injuries to his property, loss of time in the use thereof, and also for injuries to his person, and physical pain thereby occasioned directly, if the jury believe from the evidence that plaintiff did endure physical pain and suffering directly consequent upon the act of defendant.”

The defendant objected to said instruction and excepted.

The court then, at the instance of the defendant, instructed the jury, that “If they believe from the evidence, that the injuries complained of by plaintiff could have been avoided by plaintiff, if he had exercised proper and reasonable caution and care, they should find a verdict for the defendant.”

2nd. “Although the jury should believe from the evidence that the collision between plaintiff's and defendant's teams, had occurred without any fault or negligence upon the part of plaintiff, yet if they believe that the plaintiff by the exercise of reasonable care and skill might have avoided the injuries that resulted after the collision, they should exclude those injuries from their consideration, and find a verdict for the defendant.”

The...