Freeman v. Metropolitan Street Railway Co.

BROADDUS, J. The plaintiff here is the wife of J. H. Freeman, plaintiff in the case of Freeman v. Metropolitan Street Railway Company, 95 Mo. App. 94. The statement of the facts of that case will substantially answer as a statement in this, as she seeks to recover for the alleged injury which is the same in both cases. The first instruction given for the plaintiff was objected to for the same reasons that were urged against the fourth one in the husband’s case. Although said instruction is not quite so objectionable as the former one, the same objection applies to both. Instruction number two given at the instance of plaintiff is as follows: “The court instructs the jury that if they believe from the evidence that on or about the eighth day of July, 1900, the defendant was engaged in the business of transporting passengers on its cars over and upon Twelfth street and Troost avenue of Kansas City, Missouri, and that on said day, plaintiff, Mrs. Mary Freeman, was received by it to be carried as a passenger on one of its said cars, and that while being so transported on said car, she was injured by reason of said car coming to an abrupt and sudden stop in such a way that the plaintiff was thrown out of her seat and against some portion of said car and was injured and that said sudden stop was caused by the negligent, careless or unskillful management of said car by defendant’s servants, or the negligent management of said car or the equipment or machinery of the same by which it was operated, or by reason of any negligence or lack of care, skill or diligence on the part of the defendant’s servants, agents or employees operating the said car, and that the said accident could not have been prevented by the exercise of the utmost human skill, diligence and foresight, and unless the jury so believe they will find for the plaintiff. By the utmost human skill, diligence and foresight, is meant that skill, diligence and foresight as is [318] exercised by a very cautions person under like circumstances. ’ ’ The objection to this instruction is, that after the jury were told what degree of care was required of the defendant, they were further told that if said accident could not have been prevented by the exercise of the utmost human skill, diligence and foresight, they would find for plaintiff. It is bard to conceive bow an instruction could have been constructed better calculated to bewilder and confuse a jury. The law of negligence is very clearly stated in an instruction written by the court and given on behalf of the defendant, and the one under consideration must have escaped attention. Between the two the jury was left without a guide, unless it rejected the bad, and was guided in its deliberation by the good one. The first, if it meant anything, meant that the jury were to find defendant guilty of negligence at all events, Otherwise that defendant was an insurer of plaintiff’s safety. But we can not tell bow the jury acted on the instructions. Tbe same objection exists as to plaintiff’s third instruction as applied to number three, in tbe bus-band’s case. For tbe errors noted, tbe cause is reversed and remanded. All concur.