Sherwood v. Grand Ave. Ry. Co.

• Decision Date: 21 January 1896
• Citation: 33 S.W. 774,132 Mo. 339
• Parties: SHERWOOD v. GRAND AVE, RY. CO.
• Court: Missouri Supreme Court

33 S.W. 774

132 Mo. 339

SHERWOOD v. GRAND AVE, RY. CO.

Supreme Court of Missouri, Division No. 2.

January 21, 1896.

CONTRIBUTORY NEGLIGENCE — DAMAGES — DUTY OF JURY — INSTRUCTIONS.

1. An instruction that on the issue of contributory negligence, raised by defendant's answer, the burden of proof is on defendant, and that by the term "burden of proof" is meant the greater weight of the credible testimony in the case, is not open to the objection of referring the jury to the answer to ascertain the issues involved.

2. An instruction on the burden of proof on the issue of contributory negligence cannot be complained of for not setting forth the facts necessary, under the pleadings and evidence,

to constitute such negligence, where there is no evidence of contributory negligence.

3. The damages not being excessive, judgment will not be reversed because the court, instead of telling the jury what elements enter into the measure of damages, and then limiting them to such damages, told them, if they found for plaintiff, it would be proper to consider "all damages, present and future, which they believe from the evidence are and will be the direct result of the injuries complained of."

4. It is not error to refuse an instruction telling the jury that it is not proper to arrive at the damages by taking the average of the amounts the jurors believe should be recovered; Rev. St. 1889, § 2188, merely making it the duty of the court to instruct "on any point of law arising in the case."

Appeal from circuit court, Jackson county; James H. Slover, Judge.

Action by Millie R. Sherwood against the Grand Avenue Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action to recover damages for injuries sustained by plaintiff, who was a passenger on one of defendant's cars, alleged to have been occasioned by the negligence of defendant's servants in charge of the car, who, after having stopped it for plaintiff to alight, and while she was in the act of doing so, without giving her time to alight, suddenly started it, throwing her against the car and injuring her. The defenses were general denial, and contributory negligence. Plaintiff recovered a verdict for $4,500. Defendant appealed. Plaintiff was a passenger on one of defendant's cars going south on Prospect avenue. At Twenty-Third street the car was stopped to permit her to alight, and while in the act of alighting the car was suddenly started forward; and by reason thereof she fell, or was thrown, against the end of the rear platform of the car on which she was then standing, sustaining severe injuries to her back and spine. She did not fall to the ground, but was caught by some persons present, and assisted to a grocery store near by, and from that place she was taken home. The car was going up grade at the time. The defendant's evidence tends to show that the car was standing still at the time plaintiff alighted, and that her injuries, if any, were occasioned by stepping upon the dress of a lady in front of her when she was alighting, thus causing her to come in contact with the street in such a way as to produce whatever injury she may have sustained. At the request of plaintiff the court gave five instructions, two of which, it is insisted by defendant, are erroneous, and should not have been given. They are as follows: "(3) The court instructs the jury that upon the issue of contributory negligence of plaintiff, raised by defendant's answer, the burden of proof is upon defendant, and by the term `burden of proof' is meant the greater weight of the credible testimony in the case." "(5) If the jury find for plaintiff, they will assess her damages at such sum as they believe from the evidence will compensate her for her injuries, if any, inflicted by defendant, including all bodily pain and mental anguish, if any, they believe from the evidence she has suffered and will suffer, and any permanent injury, if any, they believe from the evidence she has sustained, and the reasonable value of medical services, if any, incurred by plaintiff, but not exceeding $300, the amount claimed in the petition. And it will be proper for the jury to consider the effect of the injury, if any, upon plaintiff's health in the future, if they believe from the evidence her future health will be affected by the injury, and all damages, present and future, which they believe from the evidence are and will be the direct result of the injuries complained of, altogether not exceeding $25,000." Defendant asked 12 instructions, 10 of which were given and 2 refused.

Karnes, Holmes & Krauthoff, for appellant. Warner, Dean, Gibson & McLeod, for respondent.

BURGESS, J.

1. Defendant filed a motion to quash the panel of jurors summoned to try this case, which was overruled by the court, and in this it is insisted that error was committed. The jury were selected in accordance with an act of the legislature providing for the selection of jurors in certain counties, which was approved April 1, 1891, and it is insisted that said act is unconstitutional. This precise question was before this court in the recent case of Dunne v. Railway Co. (Mo. Sup.) 32 S. W. 641, and it was there held, adversely to the contention of defendant, that the law is constitutional. It is not thought necessary to add anything to what is said in that case, as we are entirely satisfied with the views therein expressed, and think defendant's contention fully answered by what is said in that decision.

2. Plaintiff's third instruction is criticised in that it tells the jury "that upon the issue of contributory negligence of plaintiff, raised by defendant's answer, the burden of proof is upon defendant." It is argued that this instruction refers the jury to the pleadings to ascertain the issue of contributory negligence. While the jury should not be referred to the pleadings in the cause to ascertain the issues which they are to pass upon, we do not think that such was the effect of that instruction. It has been held that an instruction in a prosecution for felony which contained the following words, "as mentioned in the indictment," "as mentioned in the indictment," does not refer the jury to the indictment to ascertain what the charges are, and is not prejudicial. State v. Scott, 109 Mo. 226, 19 S. W. 89. Again, in Britton v. City of St. Louis, 120 Mo. 437, 25 S. W. 366, it was held an instruction that if the excavation "mentioned in plaintiff's petition" was made by defendant contractor by permission of the city, and was made in the alley, "in the petition mentioned," was not open to the objection that it referred the jury to the petition to...