Imhoff v. Chicago & Milwaukee Railway Co.

Downer, J. At tbe trial, tbe following instructions given to tbe jmy at tbe request of tbe respondent’s counsel were excepted to by tbe appellant: “1. If both parties were guilty of negligence, and tbe negligence of eacb party was tbe proximate cause of tbe injury, tbe plaintiff cannot recover; but if tbe negligence of tbe railroad company, tbe defendant, was proximate — that is, negligence occurring at tbe time tbe injury happened — and tbat of tbe plaintiff was remote, tben tbe plaintiff may recover. 2. If tbe jury find from tbe evidence, tbat ordinary and reasonable care and attention to tbe safety of tbe passengers on tbe train arriving' in Milwaukee at one o’clock in tbe morning, requned tbat, before backing up tbe train and putting it away, tbe company should see to it by examination of tbe passenger cars, tbat tbe passengers were all out, and tbat this was not done on tbe night when tbe plaintiff was injured, tben tbe defendant was guilty of negligence; and if tbe injury to tbe plaintiff was occasioned by backing tbe train without such examination and care, tbe defendant is liable, unless tbe jmy should also find tbat tbe plaintiff also was guilty of negligence, which contributed to produce tbe injury.” Eacb of these instructions assumes tbat at tbe time of tbe accident tbe contract of common carrier between tbe plaintiff [347] and defendant was in force. Whether it was ox not, was a severely contested point. It is error for tbe court to assume a fact wbicb tbe jury ought to determine. It is true, tbe court afterwards, wben asked by tbe defendant’s counsel, instructed tbe jury, “That if tbe jury believe from tbe evidence that tbe train bad arrived at tbe end of tbe route, and that a reasonable time bad elapsed for tbe plaintiff to get out of tbe cars, after tbeir arrival, before tbe injury to tbe plaintiff occurred, then tbe relation of common carrier between tbe parties bad ceased, and tbe defendant cannot be held liable for tbe injury as a common carrier of passengers.” Tbe giving of this instruction did not cure tbe error in the others. Where erroneous instructions are given for one party, tbe error is not corrected by giving for tbe other party instructions explanatory inconsistent with, or contradictory to, those first given. Tbe erroneous instructions should be withdrawn from tbe jury. Jones v. Talbot, 4 Mo., 279; Hickman v. Griffin, 6 Mo., 37; Clay v. Miller, 3 Mon., 146. There may be an exception to this rule, where it is clear to tbe court that tbe erroneous instruction did not mislead tbe WW- But in this case, tbe erroneous instructions being given, tbe jury might have considered tbe first, and if they found those facts on tbe finding of wbicb they were told by that instruction tbe plaintiff was entitled to recover, they might well have concluded they were not bound to examine further, except as to tbe amount of damages. Tbe same may be said of tbe second instruction given; for each professes to give all tbe facts necessary for tbe juiy to find to entitle tbe plaintiff to recover. And all such facts should be stated in every hypothetical instruction, wbicb disposes of tbe entire case in favor of one party or tbe other. For tbe error in such instruction is not ordinarily corrected by giving other instructions based upon tbe omitted facts. According to tbe instructions in this case, if tbe jury bad found tbe facts set out in either of tbe plaintiff’s instructions they must find for him; and if they found tbe facts [348] stated in tbe instruction given at tbe request of tbe defendant, they must find for bim. They might have found from the evidence tbe facts mentioned in all three of tbe instructions. It is obvious tbe two first instructions tended to mislead tbe jury, and to divert their attention from some of tbe facts on which their verdict ought to rest. And for this reason tbe judgment of tbe circuit court must be reversed. We say nothing of the many other points raised in this case, as tbe testimony on a new trial may be somewhat different, except to remark that it appears to us that when the train arrived at Milwaukee, and tbe plaintiff knew it, and a reasonable time bad elapsed thereafter for her to get off the cars, the relation of common carrier ceased; and a reasonable time is tbe time within which persons of ordinary care and prudence, under like circumstances, get off tbe cars. By the Court — The order of the circuit court is reversed, and a venire de novo awarded.