Moberly v. Kansas City, St. Joseph & Council Bluffs Railroad

Barclay, J.

— There was a sharp conflict on the issue of plaintiff’s negligence. We may summarize the effect of all the evidence in the statement that it was not such as warrants the court in declaring, as matter of law, that plaintiff’s negligence contributed to the' injury. It does not differ materially from that presented to the same point on the first appeal, as officially reported.

The instructions given by the court were in the main accurate, but certain errors, nevertheless, crept into them, requiring a reversal of the judgment. Instruction numbered 5, given at plaintiff’s instance, should not have told the jury that the law presumed that plaintiff exercised ordinary care while submitting the question of his care or negligence as an issue. The presumption that every one exercises ordinary care obtains in the absence of evidence to the contrary. But there was -abundant evidence from which plaintiff’s negligence on the occasion in question might have been fairly found. With that evidence before them, it was calculated to give the jury a wrong impression of its effect to say that a presumption of care then existed in plaintiff’s favor. We do not hold that a reference to a disputable presumption would be in all cases erroneous. But we are of opinion that, on the facts presented, it should not have been made here. Where there is evidence tending to remove the presumption a reference to the latter is usually to be avoided. This case is a close one on the issue of contributory negligence. Though there was sufficient evidence to support a verdict for plaintiff, the jury should have been left to make such finding as they considered just, on that issue, without casting into the balance such a reference to the presumption obtaining in the absence of evidence.

Instruction numbered 6 is also faulty in stating that plaintiff was not guilty of negligence in failing to select “the best possible” place to look and listen if he exercised ordinary care in selecting the place to look and listen. Plaintiff was certainly bound to exercise ordinary care in approaching and crossing the track. Ordinary care in selecting a place to look and listen would not absolve him from negligence fatal to a recovery, if he failed to use ordinary care in approaching and crossing the track after he looked and listened. Whether his selection of the place to look and listen was, or was not “the best possible” was to be considered with other facts in determining his negligence or care in the premises. But it was not decisive either way.

As a new trial, for-the reasons stated, must be had, it becomes unnecessary to remark upon some minor points of criticism of the instructions. Some of the latter contained language which the court can readily correct when its attention is directed to its effect as a comment on the evidence. No other assignments of. error appear to require comment.

The judgment is reversed and the cause remanded.

All the judges concur, except Shekwood, J., absent