Churchman v. Kansas City ( 1892 )

Smith, P. J.

This case was here on a former' occasion, and is reported in 44 Mo. App. 665, where there will be found a statement of all the facts which are necessary to a proper understanding of the questions arising on the present appeal. When the case was here before, the judgment, which was for plaintiff, was reversed and the cause remanded. It appears there has been a second trial wherein the plaintiff has been successful. The defendant again appeals.

I. The first ground of the defendant’s appeal is that the trial court erred in permitting the plaintiff to introduce city ordinance number 40147. The defendant’s objection to the introduction of this ordinance was that it was “ incompetent, irrelevant and immaterial.” These objections are too general. There was no specification, as there should have been, of the particular ground on which the ordinance was inadmissible under such general objections. So general an objection cannot be made the basis of an exception. In the light of Clark v. Loan Co., 46 Mo. App. 248, and the cases there cited, it would be seen that there was no objection, which we can notice, interposed. And besides this the motion for a new trial does not make such a reference therein to the objectionable evidence as to require any notice of it by us. The defendant’s first ground of appeal must, therefore, be ruled against it.

II. The defendant further complains of the action of the trial court in giving the second instruction for plaintiff which told the jury, although the plaintiff cannot recover, if, at the time of the injury, he was guilty of any negligence directly contributing to the injury, * * yet the plaintiff is not required to show that he was free from any such negligence, '* * * but the defendant must show that the plaintiff was guilty of negligence directly contributing to the injury. We do not think this complaint is well grounded. The rule of law is, we think, well settled in this state that, in eases of this kind, it .is not incumbent upon the plaintiff in the first instance to show that he was free from negligence, or, in the exercise of ordinary care at the time of receiving the injury complained of, but the concurring negligence of plaintiff is a matter of defense, and the burden of showing it is, therefore, upon the defendant. Fairgrieve v. Moberly, 29 Mo. App. 142; Buesching v. Gas Co., 73 Mo. 229; Sturgis v. Railroad, 75 Mo. 480; Stephens v. City of Macon, 83 Mo. 357; Parsons v. Railroad, 94 Mo. 286; O’Connor v. Railroad, 94 Mo. 150; Donovan v. Railroad, 89 Mo. 147; Huckshold v. Railroad, 90 Mo. 548. Contributory negligence is a defense that must be pleaded and proved.

The plaintiff ;s first instruction informed the jury in effect that before they could find for plaintiff they must further find that he was guilty of no negligence directly contributing to his injury. The two instructions taken together, we think, were unexceptionable, and furnished a proper guide for the jury when they retired to consider their verdict.

III. The defendant makes the further contention that the counsel for plaintiff in his closing argument before the jury exceeded the limits of legitimate argument. Whether this contention is well founded or not we are unable to determine, since the abstract nowhere sets forth the words employed by counsel to which objection is made. The rule is well settled, that where counsel have attempted to make a case in their argument which the law would not allow them to make in their tenders of evidence, such conduct if objected to, and allowed to go unrebuked, constitutes a valid ground for the reversal of the judgment. McDonald & Co., v. Cash & Hainds, 45 Mo. App. 66. But we are unable to tell whether the remarks of the plaintiff’s counsel are obnoxious to this rule or not, unless the same were before us, which is not the case. The presentation of such remarks in the motion for a new trial is not of itself sufficient. The statement of their tendency or of the conclusion of the party objecting, as to their character, will not do, and especially so when the adverse party, as is the case here, controverts such statement. Such remarks should be'set forth in hose verba. Then we could determine whether they were proper or improper.

IY. The defendant’s final contention is that the verdict is excessive, but as the abstract contains no evidence whatever as to the value of the property, or as to extent of the damages resulting from the injuries, there is nothing relating to the contention before us which we can review. We must assume in favor of the verdict and the action of the trial court, that there was evidence to support the verdict. Pembroke v. Railroad, 30 Mo. App. 62; Houseman v. Hope, 20 Mo. App. 193. It follows that the judgment must be affirmed.

All concur.