Lane v. Chicago, Rock Island & Pacific Railway Co.

Gill, J. This case is here the second time by appeal. See Lane v. C., R. I. & P. Ry. Co., 18 Mo. App. 555, and to the same as formerly reported, we refer as containing a statement of the case. The plaintiff appealed before, complaining among other things, specifically of the refusal of the trial court to give his instructions number 3 and 4. At the second trial the circuit court followed the directions of the appellate court, and gave these instructions, formerly refused, and in addition gave one for the defendant, to the effect that if the engine and cars of the defendant were at the time of the committing the injury run and operated in a careful manner, etc., that plaintiff could not recover. Defendant now assigns as error the giving of plaintiff’s instructions numbered 1, 2, 3, 4 and 5, and the refusal of the trial court to give its instruction numbered 2, which was in the nature of a demurrer to the evidence, . and an instruction to the jury to .find for the defendant, In giving plaintiff’s instructions numbered 3, 4 and 5, the trial court followed the directions of this court, when the cause was here before (18 Mo. App. 561), and hence such ruling cannot now be questioned, as whatever was then passed on must be regarded in this cause as res adjudícala. See Hombs v. Corbin, 34 Mo. App. 393, decided at the present term of this court and authorities there cited. It is not proper in instructions to the jury to refer them to the different sections of the statute, as was done in instructions, numbered 1 and 2 of this case, still we are constrained to believe that here it was a harmless [570] error, as, from the undisputed facts, it is clear that this was a case under said section 2124, Revised Statutes, 1879. In the brief of defendant’s counsel complaint is made of the inconsistency of defendant’s instruction number 1, given, ánd plaintiff’s number 5, given. There is no such error contained in appellant’s assignment of errors, and even were it there assigned, the existence of such inconsistency would hardly justify a reversal, since we hold the law as declared for the plaintiff was proper, and the said instruction of defendant, as given, was improper, and should not have been given. See Cowgill v. Railroad, 33 Mb. App. 677, decided by this court at its last term. The defendant cannot be heard here to complain of an error into which the trial court was led by defendant’s own invitation. The judgment of the circuit court must be affirmed. The other judges concur.