Johnson v. Atchison, Topeka & Santa Fe Railroad

ELLISON, J. Plaintiff hired a team of mules and their driver to defendant to> work on the repair of its roadbed in Jackson county. One of the mules was killed by defendant’s passing train, in consequence of an alleged negligent order of defendant’s foreman in directing the driver to take the team into a place of danger. The judgment was for plaintiff for the value of the mule. Contributory negligence of plaintiff’s driver was pleaded by defendant. Notwithstanding such plea, plaintiff obtained an instruction covering every phase of her case, and, on such hypothetical state of facts | (wholly omitting any proviso as to the driver’s negligence), peremptorily directed a verdict for her. If the driver’s conduct in the management and control of the [311] team was not that of an ordinarily prudent and careful driver in- the circumstances at the time, there can be no recovery. It was, therefore, error to give the instruction, thus purporting to cover the whole case, and directing a verdict thereon without including in it a proviso as to contributory negligence of the driver, unless covered by some other instruction in the case. If any other instruction had put the latter phase of the case clearly to the jury it would have cured and helped out the instruction as given. [Owens v. Railroad, 95 Mo. 169.] But there was none. When the case is retried, the instruction should be discarded, redrafted entirely and so drawn as to omit matter of argument, assumption, as fact, of matters not appearing in evidence, and all adjectives of a descriptive nature of things not appearing in proof. The instruction is rather lengthy and seems to be a resume of the petition without regard to what was developed by the evidence. The tendency of these things was to exaggerate the conditions at the scene of the collision and to place before the jury a somewhat effective argument in the shape of an instruction. As will be seen by authorities in brief of defendant’s, counsel, this was all improper matter. Furthermore, it should in referring to defendant’s alleged negligence, in some way inform the jury what constitutes negligence. [Magrane v. Railroad, 183 Mo. 119; Ravenscraft v. Railroad, 27 Mo. App. 617.] Again, the instruction should include the hypothesis whether the defendant’s negligence was the cause of the killing of the mule. We regard the record as disclosing sufficient to justify the statement that there was evidence tending to show contributory negligence in the driver, and also of his want of skill. Therefore, defendant’s instruction numbered 10 should be given by inserting the word, “directly,” between the words “skill” and “contributed.” The judgment will be reversed and the cause remanded. All concur.