Missouri, K. & T. Ry. Co. v. Wallace

The first assignment predicates error upon that part of the fourth paragraph of the court's charge reading:

"And if you believe from the evidence that defendant's employés in charge of said freight train were guilty of `negligence,' as that term has been defined to you, in causing said two trains to run together, if they did, and that such negligence, if any, was the direct and proximate cause of plaintiff's injury, if any, * * * you will find for plaintiff and assess his damages as hereinafter instructed, unless you find for defendant under other instructions given you."

The objection made to the charge is that it does not refer the jury to the negligent acts alleged or the facts proven, but leaves it broadly for the jury to say whether or not negligence caused the collision. The charge does not, it is true, expressly state to the jury the particular acts on the part of the freight crew that may be considered by them as negligently causing the collision. The charge, though, does refer and restrict the jury to the evidence before them to determine the question of negligence on the part of the freight crew in respect to the collision. According to the pleading of the plaintiff, the only two acts of negligence charged against the freight crew was the failure to side-track the freight train, as required by appellant's rule, 10 minutes before the passenger train following it was due, and, failing In that, to send back a flagman a distance far enough to stop the passenger train before it could run into the caboose broken loose from the train line of the freight train. And the only evidence offered by the plaintiff as to negligence on the part of the freight crew was in reference to the alleged acts. In view of the pleading and evidence, the charge could not properly be said, we think, to be so erroneous as to require a reversal of the case. And, further, if the court's charge is subject to the objection of being general in respect to the issue of negligence on the part of the freight crew, It would not afford ground for reversal, for the special charges of appellee, together with the special charge of appellant, given by the court, as shown in the record, served to confine, as well as define, the particular acts of negligence that the jury could and would make the finding upon. The assignment is overruled.

The second assignment complains of special charge No. 2, tendered by appellee and given by the court The special charge authorized a verdict for appellee upon the finding by the Jury that the flagman sent out in this case for the purpose of flagging and signaling the operatives of the passenger engine negligently failed or refused to go back the necessary or proper distance to give the approaching passenger train ample time to stop and avoid the collision. The objection to the charge is that it measures appellant's liability by a failure to comply with its rules formulated for conducting its business. The charge, we think, required the jury to measure the act of the flagman entirely from the standpoint of being negligence vel non, and is not subject to the objection made.

There was no error in refusing to peremptorily instruct a verdict for appellant under the evidence in this case, and the assignments numbered 3 and 4 are overruled.

Assignments Nos. 5, 6, and 7 present no error affording ground for reversal, and are overruled.

It is a fair deduction from the evidence, that the jury were authorized to make, that appellee will never be able to perform the labor of a fireman in the future, and will never have the strength in his right arm that he once had. After a careful consideration of the case, we do not feel warranted in disturbing the verdict of the jury on the amount of damages awarded. Assignment No. 8 complaining of excessive verdict, is overruled.

The judgment is affirmed.