Landrum v. St. Louis & San Francisco Railroad

BROADDUS, P. J. The plaintiff’s suit is to recover damages for the alleged negligent act of defendant’s employee whereby she was greatly injured. It appears from her testimony that in November, 1905, at night, she went upon defendant’s platform at Aurora, Missouri, to take passage on defendant’s cars, that she hurriedly walked along until she came near the cars then at the station and about to depart when she was struck on her hip by a heavily loaded truck Avhich was shoved against her without any Avaming of its approach, Avhereby she was knocked to the platform and as she attempted to rise she threw out her hands against a car Avhich Avas then moving and was again thrown down. She and others testified that she was severely injured. The defendant contends that the court, upon the plaintiff’s oavu showing, as her case depended almost solely on her own evidence, should have sustained the demurrer to her testimony and instructed the jury to return a verdict accordingly. The plaintiff’s evidence in some instances was seemingly inconsistent and indefinite but considering it altogether and after making a reasonable allowance for her someAvhat excitable temperament it is reconcilable Avitli the statement we have made. The defendant’s counsel have copied into their brief' much of her testimony, for the purpose of showing that she failed to make out a case. But we- do not believe that such a method i.s the proper way to interpret the evidence of a witness or the testimony in a case. We have applied to this case another and different test Avhich we believe to be just, and that is to look at the testimony in the light of all that has been said [720] and the surrounding circumstances, and then form a conclusion. And we aré also satisfied that the person in charge ■of the truck was an employee of the company for all the circumstances indicate that he was. It is true defendant’s testimony greatly preponderates in favor of the defendant’s theory that the plaintiff was not injured as she claims she was, but that she was thrown down and injured while attempting to board the moving train. It became a question of credibility as to who told the truth, the plaintiff or other witnesses. We are bound by the verdict. Instruction numbered one given at the instance of plaintiff is criticised on the ground that it is argumentative. The instruction is quite lengthy and its purpose was to present all the issues raised in the case for the jury to pass upon. We do not see that it submits other questions and facts than, disclosed by the pleadings and the testimony, and it is in no sense argumentative. The attention of the jury is merely called to certain facts of which there was evidence and which were necessary to plaintiff’s right to recover. There is nothing whatever to be found in the instruction of argumentative character. Another objection is, that it uses the term negligence without defining it, and that there is no other instruction in the case that supplies the defect in that particular. We do not think it was necessary especially as the jury were practically informed as to what facts would constitute negligence. And the rule now is in this state that it is not necessary in all cases to define negligence as the jury are supposed to understand what the term means. [Sweeney v. Railroad, 150 Mo. 385; Wilson v. Railroad, 122 Mo. App. 667; Hooper v. Railroad, 125 Mo. App. 329; O’Leary v. Kansas City, 127 Mo. App. 77, 106 S. W. 94.] We do not think the hold [721] ing in Magrane v. Railroad, 183 Mo. 119, is in conflict with the foregoing decisions. The defendant asked the folloiving instruction which the court refused to give, which action of the court is assigned as error, to-wit: “The court instructs the jury that in passing on this case and the evidence, they may consider with all the other facts and circumstances in evidence, the fact that plaintiff requested defendant’s station agent not to report the accident and the fact that plaintiff made no claim against defendant on account of her alleged injuries for over a year thereafter, as hearing on the question of the manner in which her injuries were received.” This instruction is an example, where certain facts are singled out for the consideration of the jury and therefore given special importance, over other facts of equal •or greater importance. It is sufficient to say, that no instances can be found, where such a practice has not been condemned by the appellate courts of this State. We have noted all the important points raised on the appeal. Affirmed. All concur.