Willmott, By Next Friend v. The Corrigan Consolidated Street Railway Company

• Decision Date: 09 November 1891
• Citation: 17 S.W. 490,106 Mo. 535
• Parties: Willmott, by next Friend, v. The Corrigan Consolidated Street Railway Company, Appellant
• Court: Missouri Supreme Court

17 S.W. 490

106 Mo. 535

Willmott, by next Friend, v. The Corrigan Consolidated Street Railway Company, Appellant

Supreme Court of Missouri

November 9, 1891

October, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Pratt Ferry & Hagerman for appellant.

(1) The court erred in giving instruction, numbered 2, of its own motion, which was given on the fourth day after the case was submitted. First. Whether there was any negligence in either of the respects alleged was for the jury. 20 C. L. J. 104; Thompson on Passengers, 444; Fleck v. Railroad, 134 Mass. 481; Ashbrook v. Railroad, 18 Mo.App. 290; Donney v. Hendrie, 46 Mich. 498; Geistle v Railroad, 23 Mo.App. 361; Smotherman v. Railroad, 29 Mo.App. 265; Burns v. Railroad, 50 Mo. 139; Huelsenkamp v. Railroad, 34 Mo. 45, 51; Lehr v. Railroad, 118 N.Y. 556. The testimony warranted the submission of these questions. Plaintiff, by asking instructions 2, 3, 5, 6 and 12, tried the case on such theory, and that without more would bind him. State v. Hope, 100 Mo. 347. Second. There being then a substantial issue, the court on the original submission instructed the jury fairly, and it was not until the fourth day after the submission that instruction 2 was given. Third. Instruction 2, as thus given, was erroneous in two respects: First. It did not submit the question of contributory negligence, but merely submitted the question whether plaintiff's negligence was the cause of the injury. Second. It submitted only the negligence in jumping from the moving train, ignoring the negligence of taking and keeping an improper position on the car. The court must not refer the jury to pleadings, but must state for the jury the issues in the case. Proctor v. Loomis, 25 Mo.App. 488; Porter v. Knight, 63 Iowa 365; Bryan v. Railroad, 63 Iowa 464; Fitzgerald v. McCarty, 55 Iowa 702; Thompson on Charging the Jury, 13, sec. 8. It follows that, if the court enlarges the issues, reversible error is committed. Waldhier v. Railroad, 71 Mo. 514; Reed v. Bott, 100 Mo. 62. And there is the same result if the court, instead of enlarging, restricts the issues, as was done in this case. Bank v. Murdock, 62 Mo. 70; Mansur v. Botts, 80 Mo. 651; Hines v. McKinney, 2 Mo. 70; Irgerson v. Pomeroy, 13 Mo. 620; Butcher v. Death, 15 Mo. 271; Barada v. Blumenthal, 20 Mo. 162; Mead v. Brotherton, 30 Mo. 201. Fourth. It must be said that instruction 2, standing alone, is erroneous. The question then is, was appellant prejudiced thereby? The rule which appellate courts invoke is this: Where error has intervened in the trial of a case, a presumption of prejudice arises, and, unless the respondent can show from the record beyond any doubt that no prejudice resulted, there must be a reversal. Hawes v. Stock Yards, 103 Mo. 60; Clark v. Fairley, 30 Mo.App. 335; Suttie v. Aloe, 39 Mo.App. 38-43; Walton v. Railroad, 40 Mo.App. 544, 550; Bindbeutal v. Railroad, K. C. Ct. App. Mss.; Smiths v. Shoemaker, 17 Wall. 630, 639; Railroad v. O'Brien, 119 U.S. 99, 103; Gilman v. Higley, 110 U.S. 47, 50. Fifth. Instruction 2 as given conflicted with every other instruction before given. Conflicting instructions are always condemned, because it cannot be told which the jury followed. Frederick v. Allgaier, 88 Mo. 598, 603; State v. McNally, 87 Mo. 644, 658; State v. Simms, 68 Mo. 305, 309, 310; Simmons v. Currier, 60 Mo. 581, 585; Henschen v. O'Bannon, 56 Mo. 289, 292; Thomas v. Babb, 45 Mo. 384, 388; Goetz v. Railroad, 50 Mo. 472, 474; Spohn v. Railroad, 101 Mo. 417. Sixth. Instruction 2 was given after argument, without any request from the jury, and without any pretense of correcting any oversight or omission on the part of the judge. It is only when the record affirmatively discloses some such reason that an instruction can be given after argument. R. S. 1879, sec. 3655; R. S. 1889, sec. 2188; Burns v. Wilson, 1 Mo.App. 179, 181, 182; Cordes v. Straszer, 8 Mo.App. 61, 64, 65; Clusky v. St. Louis, 50 Mo. 89; Dowzelot v. Rawlings, 58 Mo. 75, 78. (2) There was error in giving instruction 2 for plaintiff, for the reason that it was for the jury to say whether it was negligence in itself to stand on the front step of the moving car. Myer v. Railroad, 40 Mo. 151; Staples v. Canton, 69 Mo. 592; Colvin v. Sutherland, 32 Mo.App. 77; Huhn v. Railroad, 92 Mo. 450; Barry v. Railroad, 98 Mo. 71; Wagner v. Railroad, 97 Mo. 523; see also cases cited in brief, div. 1, subd. 1, supra. (3) There was error in giving plaintiff's instruction, numbered 5. First. The instruction requires the highest degree of care. Dougherty v. Railroad, 97 Mo. 647, 648; Pershing v. Railroad, 71 Iowa 561, and cases cited. Second. The instruction assumes that plaintiff was in a position where he would probably be injured. (4) Plaintiff's instruction, numbered 12, is erroneous. First. It seeks to apply the rule in this state, if after appearance of danger the injury could have been avoided (Williams v. Railroad, 96 Mo. 275), to a case not within the reason of the rule. Tuley v. Railroad, 41 Mo.App. 432; Kellny v. Railroad, 101 Mo. 67. Second. It makes a liability regardless of contributory negligence, if the position of the boy could have been discovered by any kind of care. (5) Plaintiff's instruction 13 is erroneous in that it submits the question as to future damages to the unguided guess of the jury. This is in the face of Hawes v. Stock Yards, 103 Mo. 60. (6) The court erroneously permitted each of the questions 1, 2 and 3 to be propounded to plaintiff, and each of the questions 4, 5 and 6 to be propounded to Elijah Brown, as they called an opinion on the very question that was to be tried by the jury. Gavish v. Railroad, 49 Mo. 274; Eubank v. Edina, 88 Mo. 650; Gutridge v. Railroad, 94 Mo. 468.

Jones & Jones and Crittenden, Stiles & Gilkerson for respondent.

(1) The giving of the additional instructions after the argument and submission did not prejudice the defendant nor constitute error. Burns v. Wilson, 1 Mo.App. 181; Clusky v. St. Louis, 50 Mo. 89; Dowzelot v. Rawlings, 58 Mo. 78; McKeon v. Railroad, 43 Mo. 405; State v. Miller, 100 Mo. 623; Chinn v. Doris, 21 Mo.App. 369. (2) Where the merits of the case appear to be decidedly in favor of the successful party the appellate court will be reluctant to reverse on mere technical objections to instructions. Nicholson v. Golden, 27 Mo.App. 159; Barry v. Railroad, 98 Mo. 73. (2) Plaintiff's instructions, numbered 1, 5 and 12, were correct. Muehlhausen v. Railroad, 91 Mo. 332. The words by "diligent inquiry," "reasonable care and diligence," "remotely" and "prudence and care" do not have to be explained. Cottrill v. Krum, 100 Mo. 397; Johnson v. Railroad, 96 Mo. 340; Muehlhausen v. Railroad, 91 Mo. 332. (3) Plaintiff's instruction, numbered 13, is not defective on the question of damages. Sidekum v. Railroad, 93 Mo. 406; Waldhier v. Railroad, 87 Mo. 48.

Thomas, J. Barclay, J., concurs.

OPINION

IN BANC.

Thomas J.

Plaintiff, a minor, brought this action to recover damages for personal injuries alleged to have been sustained by him while a passenger on defendant's street railway car. He recovered judgment in the circuit court of Jackson county for $ 5,000 from which defendant appealed to this court.

I. The first proposition we will discuss is in relation to plaintiff's right of recovery, upon the pleadings and evidence. This point has been expressly made at the hearing before the court in banc, and, as it fairly arises on the record of the trial, is entitled to be now considered, though not raised earlier in this court. In order to dispose of this point intelligently, it becomes necessary to give a summary of the pleadings and evidence. Plaintiff who prosecutes this action by next friend bases his right to recover upon the ground that being a passenger on a car of defendant's street railway in Kansas City in September, 1885, he was thrown to the ground, and under the wheels of said car and seriously injured by reason of the negligence, carelessness and recklessness of defendant's agent in driving said car at an unusually high and dangerous rate of speed.

The answer contained a general denial, and a plea of contributory negligence, on the part of the plaintiff. First. In taking and keeping an improper position on the car; second, in attempting to get off of the car while moving, and, third, in negligently conducting himself while on the car.

Defendant did not interpose a demurrer to the evidence at the close of plaintiff's case, but, at the close of the evidence on both sides, it did ask the court to instruct the jury to return a verdict for defendant, which the court refused to do, thus presenting the point under review.

Plaintiff's evidence tended to show that he was twelve years of age at the time of the accident. He started down town about three o'clock P. M. with another boy, about fourteen years old. They boarded one of the street cars of defendant's line, some two blocks away from the point of the injury. The car was in charge of a driver who acted as conductor, when the boys came aboard by way of the front platform. Plaintiff's companion took a position on the platform proper, the plaintiff himself remaining on the lower step, with his back to the street, his right hand grasping the handrail attached to the body of the car, inside of which there was ample sitting room. The driver received the fare from the boys.

Louis Rollman testified that he was on the car just prior to the injury, and that the driver of the car went by the name of Big Jim. He says, "I got on the front end of the car. * * * Just after I jumped on, Jim collected the fare from some little boy standing on the front end of the car, and he said 'Lou, I want your fare.' I said, 'Well, you go to the...