Burton v. Quincy, Omaha & Kansas City Railway Co.

ELLISON, J. This action is for personal injury received by plaintiff in getting off a moving car on the order of defendant’s agent. Plaintiff recovered in the trial court. Plaintiff was a section hand. He and his comrades had boarded a flat car to ride down to where their handcar had been left, where they were all to get off. The petition charges that, the servants of defendant in charge of the train “negligently and carelessly failed and refused to stop said train; that thereupon the foreman under whom plaintiff worked carelessly and negligently ordered plaintiff to jump off of said train.” It is then further charged that by reason of these negligent acts plaintiff was hurt. The answer denied the negligence. Yet, the instructions for plaintiff, given over defendant’s objection, entirely ignore any question of negligence, and wholly omit any reference thereto. This was error. The pleading and the case made defendant’s negligence as one of the chief issues between the parties. The instructions would authorize a verdict for plaintiff even though no negligence was shown, or believed to exist. Birtwhistle v. Woodward, 95 Mo. 113; Jackson v. Bowles, 67 Mo. 609, 618; Crews v. Lackland, Ib. 621. [619] The judgment is reversed and tbe cause remanded. All concur.