McKeon v. Citizens' Railway Co.

Currier, Judge, delivered the opinion of the court. The general facts appearing in this record are sufficiently stated in the opinion of the court delivered in this cause when it was heard on a former occasion. (42 Mo. 79.) There is but a single question presented for consideration on the present appeal. , At the re-trial, after the jury had retired to consider of their verdict, the court, on the request of the jury for further directions regarding the law of the case, of its own motion gave the following additional instruction, namely: “The law does not fix or regulate the number or kind of servants and agents that defendant shall employ in the running and management of its cars. But it is the duty of the company to employ a reasonable and sufficient number of persons to run and manage its cars with safety to passengers ; and if any injury occurs to passengers by reason of the failure of the defendant to employ a reasonable and sufficient number of servants or agents, the defendant would be liable for such injury.” The defendant objects to the action of the court in giving this instruction, on the ground that its tendency was to withdraw the minds of the jury from a consideration of the doctrine of contributory negligence, in regard to which the court had instructed them as follows, namely: “If the jury find, from the evidence, that the injuries complained of were caused by the negligence or misconduct of the plaintiff, or that he directly, in any manner, contributed thereto by his own wrongful or negligent act, then he [407] cannot recover.” The jury were also instructed that if they “believed, from the evidence, that the injuries complained of were caused by the plaintiff getting or attempting to get off the forward platform or front end of defendant’s car,” then he could not recover. These instructions, in connection with that given by the court upon its own motion, present the law of the case, as respects the particular matters in question,, as fully and fairly as the defendant had a right to claim. Undoubtedly the instruction objected to, standing alone, would have been bad, as omitting the element of contributory negligence. But that point was fully met by the other instructions ; and the instructions are to be considered and construed in their combination and entirety, and not as though each separate instruction was intended to embody the whole law of the case. We discover no error in the judgment of the Circuit Court, and it is therefore affirmed. The other judges concur.