Keith v. Pinkham

Appleton, J. The plaintiff to entitle him to recover, was bound to satisfy the jury that the injury for which he seeks to recover compensation occurred without fault on his part, and through the neglect or want of ordinary caro and prudence on the part of the defendant or his servants. No exceptions have been taken to the instructions given, which relate to the relative duties and obligations of the plaintiff and the defendant. They may thus be assumed to be correct. The plaintiff, it seems, was riding on the outside of the defendant’s coach when the injury in question was sustained. The counsel for the defendant requested the presiding judge to instruct the jury, “ that if Nathaniel Crocker, who claimed to be an agent of the defendant, requested the plaintiff to take an inside seat, there being a seat for him inside, and the plaintiff declined to take it, and the said Crocker informed him if he remained in his seat he must do it at his own risk, that the plaintiff can recover no damages in this action.” [504] This requested instruction was declined, and, as we think, correctly. It may be true that the plaintiff, by riding outside, incurred the peculiar risks, if any there were, arising from his exposed situation. But that is all. He did not assume those resulting from the negligence of the defendant or those in his employ. He or they would not be exonerated from their duties, and if the .plaintiff was injured through his or their neglect, he being in the exercise of ordinary and common care, in no way contributing to the injury by his position, he might well maintain this suit. The fact that the plaintiff took his position outside, was a circumstance proper for the consideration of the jury in determining Whether his negligence contributed in any way to the production of the injury. But the requested instructions took from the jury all inquiries as to the defendant’s negligence, and they were rightfully withheld. The instructions as to. damages were correct. If the defendant had desired them to be more explicit or definite in any aspect of the case, he should have made his requests to-that end. Being correct so far as given, it is no cause of complaint that supposed instructions, but not requested, might have been given, which would have been correct. Exceptions overruled.