Louisville, New Orleans & Texas Ry. Co. v. Suddoth , 70 Miss. 265 ( 1892 )

Cooper, J.,

delivered the opinion of the court.-

The appellee sued the appellant to recover the,value of a horse killed by one of its trains.

The plaintiff’s evidence tended to show negligence on the part of the engineer of the train, especially in not checking its speed when the danger of injuring the animal became apparent. The defendant asked the court to instruct that, “ if they believe, from a preponderance .of the evidence, that tbe defendant’s employes used reasonable care and caution to avoid the injury, or that, after seeing the horse on the track, it was impossible to have stopped the train in time to avoid the injury, they will find for the defendant.”

The court modified the instruction, so that it read as follows: “If they believe, from. a. preponderance of the evi-

dence, that the defendant’s employes used reasonable care and caution to avoid the injury, and that, after seeing the horse on the track, it was impossible to have stopped or slowed up the train in time to avoid the injury, they will find for the defendant.”

It may be admitted that the instruction, as modified, imposed upon the defendant too great a degree of care to avoid injury to the animal, after its danger was discovered, and was, therefore, erroneous. But this will avail nothing, unless the instruction, as asked, was correct. If the defendant was not content with the instruction, as modified, it should have declined to read it to the jury.

No modification of an erroneous instruction can be assigned for error by the party asking the instruction, for the court might refuse such instruction outright. ■ One who is entitled to nothing cannot complain that he gets something, but less than he asks. The instruction, as asked, was erroneous, because of its statement, in the disjunctive, that doing what could have been done to avoid the injury, after the danger was discovered, discharged the defendant from any precedent negligence.

The judgment is affirmed.