Plummer v. Kansas City

Ellison, J. Plaintiff was injured on one of the ■defendant’s sidewalks and recovered judgment in the [484] trial court. Defendant appeals. Defendant pleaded contributory negligence, and it is of the treatment of this part of the case that comjffaint is now made. All we care to notice is instruction, numbered 2, given for plaintiff. It is as follows: “2.. Unless the jury are reasonably satisfied from the evidence that plaintiff acted recklessly or heedlessly in walking upon the sidewalk at the point in question ; that is, not with the care and prudence fo'r her physical safety that would have been exercised by an ordinarily prudent person under similar circumstances, then the jury cannot find a verdict for the defendant on the ground of plaintiff’s negligence alleged by the defendant.” This instruction should not have been given. By it the jury are told that, unless plaintiff acted recklessly or heedlessly in going over that part of the walk where she was injured, they must find for her. In other words that, unless she was reckless or heedless, she must recover. The use of these words, especially the former, was altogether out of place. Recklessness sometimes includes carelessness, but it is much moi e than carelessness, it implies wilfulness, and when applied to characterize an act done to another person it is wantonness. To be reckless is to be utterly regardless of consequences. LaFayette, etc., Ry. Co. v. Adams, 26 Ind. 76; State v. Bridgman, 94 N. C. 888. Recklessness, instead of being merely the want of ordinary care, is more nearly the want of any care. ' And so it is understood in common speech. “Reckless” is defined in the “Century Dictionary” as: “Not recking of consequences, desperately heedless, as from folly, passion or perversity, impetuosity, or rashly adventurous. “‘I am one, my liege, whom the vile blows and buffets of the world have so incensed thar I am reckless what I do to spite the world. Shak. McB., III.-I.-110.’” But the instruction is defended by plaintiff ’s counsel on the ground that it defines what was meant by the [485] use of the objectionable words. But it would not be justice to defendant to allow this. Those words were inserted in the instruction for operative effect, and it is reasonable to suppose they had the effect intended. They characterize, and must have been intended to characterize, “the care and prudence” afterwards stated. They gave to the instruction a direction and color not warranted by the law. In regard to the criticism made on instruction, numbered 17, refused for defendant, it would, perhaps, in view of what was said in Buesching v. Gaslight Co., 73 Mo. 233, have been better not to have substituted the word “would” for “could,” though in its practical application to the mind of the jury as applied to the case, we scarcely see what difference could be made in arriving at a verdict, by the use of either. The judgment is reversed and cause remanded. All concur.