McMahon v. Pacific Express Co.

Bubgess, J. This is an action for damages for personal injuries sustained by plaintiff, resulting from the collision between two wagons moving in adverse directions, on Sixth street in Kansas City, Missouri. There was a verdict and judgment for plaintiff in the sum of $1,000, from which said judgment defendant appealed. On the nineteenth day of March, 1892, the plaintiff, who was then about seventeen years of age, was driving a light delivery wagon westerly on Sixth street, in said city, near the north curbing of said street. There was at the same time a buggy standing against the same curbing. When plaintiff approached this buggy he pulled to the left in order to pass it. At the same time a heavy one horse express wagon, owned by defendant and driven by its servant and employee, came from the west along near the center of the street, the horse drawing the same being in a swift trot. When near the buggy, defendant’s wagon pulled to the left, across the north track of the street railway; this was at the same instant that plaintiff turned around — 646 — the buggy to pass it, at which time the express wagon was about ten to fifteen feet from plaintiff’s wagon. The wagons collided resulting in breaking the shafts to plaintiff’s wagon, precipitating him to the street, breaking his left leg below the knee, and otherwise injuring him. The evidence was somewhat conflicting as to who was in fault, the plaintiff, or the driver of defendant’s wagon, or both. The evidence on part of plaintiff shows that he was not in fault. When the case was called for trial defendant moved the court to quash the panel of jurors, upon the ground that the law under which they were drawn and summoned is unconstitutional, which motion was overruled, and in this ruling defendant contends error was committed. The jurors were selected and summoned in accordance with the provisions of an act of the general assembly, entitled “An act providing for and designating the manner of selecting petit jurors, and prescribing their qualifications, etc.” Approved April 1, 1891. The constitutionality of that law has been passed upon by both divisions of this court, and in each instance it has been held to be valid. Dunne v. Kansas City Cable R’y Co., 131 Mo. 1; Sherwood v. Railroad, ante, p. 339. It would, therefore, seem that the question ought to be regarded as settled. Plaintiff testified as a witness in his own behalf, and was permitted to state, over defendant’s objection, that after defendant struck his wagon he kept on going down to May street and then stopped and came back. The objection to this evidence was that it was immaterial, and did not tend to 'disprove any issue in the case. We are unable to see the materiality of this evidence. It is clear that it did not tend to prove the allegations in the petition, but we can not conceive in what manner the defendant could have been prejudiced — 647 — by its admission and the judgment should not b© reversed on that ground. At the instance of plaintiff the court over the objection and exception of defendant instructed the jury as follows: “1. If the jury find from the evidence, that on the nineteenth day of March, 1892, the defendant was engaged in the express business in the city of Kansas City, Missouri, and, in carrying on its said business, in said city, it owned and made use of certain horses and wagons, and that on said day, a driver in the employ of the defendant, while driving a team attached to a wagon of the defendant, along and upon Sixth street in said city in the business of the defendant, negligently and carelessly caused its said wagon to collide with a wagon, in which wagon the said Edward J. McMahon was at the time, and that in consequence of said collision, the' said Edward J. McMahon was,, without fault or negligence on his part, injured, then-the verdict of the jury should be for the plaintiff. “2. Negligence as used in the foregoing instruction means that the party guilty thereof has done something which a reasonably prudent man under the-circumstances would not have done, or failed to do-something which a reasonably prudent man under the circumstances would have done. “3. If the jury find from the evidence and under the instructions of the court, that the plaintiff is entitled to recover in this action they will, in assessing his damages, take into consideration the nature and extent of the injury proven, whether the said injury is permanent or not, the physical pain and mental anguish, if any, resulting therefrom, and as compensation therefor, assess his damages in a sum not exceeding ten thousand dollars. — 648 — “4. The court instructs the jury that it was the duty of defendant’s teamster, when he met the plaintiff on Sixth street, in this city, to turn to the right of said street, if it was practicable to do so, so as to enable his wagon and that which the plaintiff was driving to pass each other without a collision, and if you believe from the evidence that defendant’s driver failed and neglected to so turn his team to the right of said street, when it was practicable to do so, and that such failure and neglect was the cause of the collision, and that the plaintiff was injured thereby, then you should find for the plaintiff.” Defendant insists that the first instruction is too general, and that the fourth authorizes a recovery if defendant’s driver did not turn to the right, although plaintiff himself may ■ not have been doing so at the time of the collision. Upon the other hand it is contended that when plaintiff’s first and second instructions are taken together they contain all the precision necessary, and that if his fourth instruction is erroneous, if defendant desired to have the correlative duty of plaintiff defined, it was his duty to ask the court to instruct on that phase of the case, and in any event the instruction only authorized a recovery, if the defendant’s failure to turn to the right was the cause of the accident. We see no objection to plaintiff’s first instruction when taken in connection with his second. The first is as broad as the allegations in the petition with respect to the negligence of the defendant, and the ■second correctly defines negligence in accordance with repeated rulings of this court. By an ordinance of said city which was read in evidence by plaintiff, it is provided that when persons meet each other in vehicles in any street, each person so meeting shall turn to the right of such street, so as — 649 — to enable sueb vehicles to pass each other without collision. It is upon this ordinance that plaintiff’s fourth instruction is based. While the duties of plaintiff and the driver of defendant with respect to each other were mutual under said ordinance, that is, to turn to the right on meeting, the instruction tells the jury if defendant’s driver failed to turn to the right on meeting plaintiff’s wagon, and thereby caused the injury, they will find for plaintiff, thereby authorizing a recovery by plaintiff, whether he was in observance of the law at the time or not. No other instruction cured this defect, and upon it alone the jury may have made their verdict. The evidence on the part of defendant tended to show that plaintiff himself was in fault, and contributed directly to his own injury. In Goetz v. Railroad, 50 Mo. 472, it is said: “If the plaintiff has shown a state of facts that, of themselves and alone, would authorize a verdict, and other facts were claimed to have been proved by defendant, that would control these facts and require a different one, it would be a misdirection to direct a verdict upon plaintiff’s showing merely.” Here the facts proved by defendant tended to control those shown by plaintiff and to require a different result. Moreover, it might well be inferred from .this instruction that the court was of the opinion that there was no evidence tending to show that plaintiff was guilty of negligence contributing to his injury, while there was some evidence on the part of defendant tending to show that he was, which should have been submitted to the jury. It is no answer to this contention to say that if defendant desired to have the correlative duty of plaintiff defined, it was his duty to ask the court to instruct on that phase of the case. As the instruction was the only one given on that question it should have — 650 — embraced all the facts with respect of the acts of the different actors. The answer avers that “any injuries received by plaintiff, if any, were occasioned by the careless, negligent, and wrongful acts of plaintiff in driving at the time of the alleged injury, which directly contributed thereto.” The allegations in the answer were denied by plaintiff in his reply thereto, which clearly presented the issue of negligence of the respective parties, upon which the evidence was conflicting, hence we think the whole case was not fairly submitted to the jury. If plaintiff was guilty of negligence contributing directly to his injury he is not entitled to recover. There was no error in refusing defendant’s second instruction as asked, and in modifying and then giving it as modified. As it was asked it presented a mere abstract proposition, and by the modification was made applicable to the facts in evidence. The evidence was sufficient to entitle plaintiff to have his case go to the jury, and there was therefore no error in refusing the instruction interposed by defendant in the nature of a demurrer to the evidence. The judgment is reversed, and the cause remanded. Gantt, P. J., and Shebwood, J., concur.