Walker v. St. Louis & Suburban Railway Co. , 106 Mo. App. 321 ( 1904 )

REYBURN, J.

(after stating the facts). — 1. The errors assigned are introduced at portal of the case by the deduction that the usual imperative instruction, asked at close of plaintiff’s case and renewed at close of all the testimony, directing the jury that under the pleadings and thé evidence, plaintiff could not recover and the verdict should be for defendant, should have been given. In determining such question, the evidence constituting plaintiff’s case must be regarded most favorable to him. Meyers v. St. Louis Transit Co., 73 S. W. 379. Giving full credit to the version of plain-r tiff, there is a prominent feature displayed by the evidence presented here distinguishing this case from the authorities invoked from the Supreme Court as well as this court. In the class of cases relied on, the plaintiff either drove or stepped in front of a rapidly moving street car or railroad train; such are the facts in Cogan v. Cass Avenue, etc. Co., 73 S. W. 738; Watson v. Mound City, etc., Co., 133 Mo. 246; Gettys v. Transit Company, 103 Mo. App. 564, and Renoe v. St. Louis, etc., Co., No. 10733, of Supreme Court, not yet reported. Plaintiff herein charged that the injuring car was still and motionless when he drove across its path and that the motorman, derelict in his duty negligently started and brought about the collision. Only in those instances where the undisputed facts are such that reasonable minds can draw no inference from them other than that plaintiff was at fault is such instruction warranted. Meyers v. Chicago, etc., Co., 77 S. W. 149. When, however, a given state of facts is such that- reasonable men may fairly differ whether or not there was negligence, the determination of such question is for the jury. Warner, etc., v. Ball, etc., Co., 168 U. S. 339. Giving due credit to plaintiff’s proof, under this rule, which is accorded general approval and repeatedly adopted in this State, the court properly relegated the question of negligence to the jury.

2. The first instruction impugned as misleading was a correct exposition of the theory of general negligence in the control, management and movement of the colliding car, upon which the right of action was based, and while the so-called vigilant watch ordinance was by the proof and pleadings omitted-from the case, the mere use of ordinary terms employed therein was not prejudicial error. The instructions to the effect that no legal presumption of negligence should be indulged from the occurrence and authorizing the jury to discredit the entire statements of any witness believed to have willfully testified falsely in any material particular, while justified under proper conditions, belong to a class of instructions, the propriety of which rests largely in’ the sound judicial discretion of the trial judge, and the presence of either in or its absence from the record w;ould not enforce reversal, and in the light of the facts established here we incline to defer to the opinion and action of the learned trial judge in this regard. Hartpence v. Rogers, 143 Mo. l. c. 634. An instruction, identified throughout as number thirteen, substantially requiring the use by plaintiff of ordinary care and the exercise of his faculties in approaching and crossing a street railroad track, and requiring him to look and listen whether the motorman gave signals or not, asked by appellant, is comprehended so far as it was appropriate in the general terms of other instructions constituting the whole charge to the jury.

• 3. The language of the instruction determining the. measure of damages is in violation of the general doctrine, that the future consequences must be rigidly confined to such as are reasonably certain to result from the injury and should not be amplified to those which are merely possible or even probable. Schwend v. St. Louis Transit Co., 105 Mo. App. 534. Under this instruction the jury were permitted to exceed the boundaries of legal certainty and stray into the prohibited range of personal conjecture and individual speculation regarding the ultimate injurious effect of the casualty./

The judgment is reversed and the cause remanded.

Bland, P. J.t and Goode, J., concur.