Tawney v. United Railways Co.

OPINION. I. BOND, J. Presumption of no Negligence. (After stating the facts as above). — Appellant complains of instruction numbered 6 given on behalf of defendant, for that said instruction, among other things, stated to the jury the legal presumption that the injury or accident to her husband was not ‘£ due to any fault or want of care on the part of the defendant.” The point of objection to this instruetion is that since there was evidence in the case which warranted the court in submitting the issue of negligence to the jury, the instruction should not have mentioned this legal presumption applicable to eases where nothing is shown but the bare fact of an injury or accident for Which redress has been sought. The instruction, how — 608 — ever, did not stop with the statement of the presumption of law in such cases, but stated to the jury in substance that it was to be disregarded by them, if “plaintiff has established the facts entitling her to a verdict, as in other instructions defined, by the great weight of all the other evidence before made.” The only difference 'being that the court conveyed this idea by the use of two negatives “cannot be disregarded by you unless, etc. ’ ’ This was simply an equivalent mode of stating the proposition. This direction was further clarified by other language contained in the instruction to the effect that the jury were at liberty to find for the defendant if they “found the greater weight of the evidence upon the issue defined in these instructions to be against the plaintiff and in favor of the defendant,” or in case of their inability “because of con flicting testimony to conscientiously determine upon which side the credible evidence preponderates.” The plain meaning of this instruction was that the jury should .disregard the legal presumption with which it was prefaced if they believed the evidence introduced by plaintiff in support of her cause of action, but that they should find for the defendant if they disbelieved the testimony given in support of plaintiff’s right to redress, or if they believed the weight of the evidence was with the defendant on the issue of negligence, or if the conflicting evidence simply created an equilibrium of proof. For in either of these alternatives the legal presumption would reapply. This instruction stated the duty of the jury upon the issuable fact of negligence to find for the plaintiff if the evidence preponderated in her favor and to find for the defendant if it did not. This was correct, for in the event the plaintiff made no case, by affirmative proof of negligence, the legal presumption would obtain. In the absence of proof of negligence, such a presumption arises in all cases where the doctrine of res ipsa loquitur does not apply. The reason being, that in all other cases — 609 — the party who alleges negligence must prove it by other evidence than the happening of the injury. The learned trial judge correctly conceived the law in this respect and embodied it in a carefully guarded instruction, since there was no claim in this case that the rule of res ipsa loquitur had any application whatever. . II. Appellant also complains of instruction numbered 4, wherein the court in substance told the jury that if appellant’s husband was injured “in any other way” than as set forth in the allegations of specific negligence contained in the petition, there could be no recovery in this action. Appellant says.that the deceased “was injured by malarial fever,”’ and the jury under this instruction might have thought that a verdict for defendant would be justified upon that conceded fact. To this it need only be answered that such a misunderstanding was impossible under the language contained in the last clause of instruction numbered 2 given on behalf of appellant, wherein the jury were told (an instruction covering the case), to-wit: “then you will find for the plaintiff, notwithstanding you may further believe from the evidence that said Louis C. Tawney has suffered from malarial fever, provided that the jury further find from the evidence that he would not have died at the time, under the circumstances, and in the manner he did die, had it not been for being thrown and falling from said car, if the jury find from the evidence this occurred.” It has been uniformly held in this’State, as stated in an opinion by the writer, quoted in appellant’s brief, to-wit: “The rule reading together all the instructions given in a .case, warrants the supplementing of an imperfect by a perfect instruction; or, in other words, the curing of omissions in one instruction by a complete and correct statement in another one; hut it does — 610 — not go to the extent of holding that an instruction given for respondent which is radically wrong — that is, perverts the law or prejudges the facts — can be cured by another on behalf of the same party which is free from the vice of the former. Such repugnant directions afford no guide to the jury, nor can it be presumed that they followed one rather than the other.” The foregoing language was used, with a slight verbal correction of error in print in Desnoyers Shoe Co. v. Lisman & Ramsey, 85 Mo. App. l. c. 344, and Linn v. Massilon Bridge Co., 78 Mo. App. l. c. 118. The language quoted from appellant’s instruction when considered with that contained in the instruction complained of, prevented any misapprehension in the minds of the jury of the nature of the injury sued for in this action. The actionable injury for which this suit was brought was caused to the husband of appellant by his falling or being thrown from a car of the respondent. This suit was not brought for any other injury suffered by him. This was correctly stated in the instruction complained of and to prevent the possibility of error in the mind of the jury, appellant, as shown above, stated in the most explicit terms to them that they should confine their investigation to the effects of that injury in causing his death, and should leave out of view any consideration of his prior sickness, if they believed that the efficient cause of his death was the negligence charged in the petition. Under the rule above quoted, these two instructions supplied a full and complete view of the applicatory law to the triers of the fact. If there was any omission or imperfection in the instruction given for the respondent, it was supplemented by the perfect and complete instruction given at the request of appellant. This assignment of error is therefore overruled. Appellant complains of instruction numbered 5, given on behalf of respondent, wherein the court submitted to the jury the question of whether or not the — 611 — car upon which deceased husband desired to embark, stopped a reasonable time to permit Mm to do so with safety. Appellant’s contention being, that there was no evidence to show that the deceased “waited an unreasonable time before attempting’ to board the car.” This instruction simply stated the converse of the theory on which appellant’s action was predicated, which was that the car started prematurely, and appellant submitted that issue to the jury as one of the elements of the negligence attributed to respondent, and in other instructions appellant set forth the definition of the degree of care to be observed by respondents with respect to persons desiring to become passengers on its line. We are therefore unable to concur in the objection urged by appellant to instruction numbered 5. III. Another point made by appellant is that during the course of the argument the attorney for respondent stated in substance that money was paid to her by an insurer upon the statement that her husband had died of malaria. That statement was objected to by appellant’s attorney, and the court stated to the jury that “there was no payment of money shown by the record,” and that this was a “correction by the court of the statement of the counsel.” Appellant did not except to the action of the court in refusing to further reprimand the counsel than by its said corrective statement. This assignment of error presents nothing for review. [Torreyson v. United Railways, 246 Mo. l. c. 706.] Appellant finally urges that the court erred in not sustaining her challenge to juror Foshett. This juror on his voir dire examination stated that he knew an officer of the company, Captain McCulloch, for over thirty-five years, and that their relations were very friendly. When this had been brought out by appellant’s attorney, and. the further fact that the juror would have that feeling to contend ag’ainst in render — 612 — ing a verdict, although he would try to be fair in so doing, the court asked him, and he answered the following questions. .“By the Court: Q. Of course you realize that Capt. McCulloch is not the defendant here? A. Well, I recognize him as an officer of the company. “Q. Would the fact that you happen to know him intimately be any reason why you cannot sit here as a juror and he sworn to hear the testimony impartially' and weigh it as between the testimony on the one side and on the other, and then listen to the instructions of the court and decide the case according to that evidence that you have heard and in accordance with the instructions of the court, disregarding any acquaintance you may have with either side? A. I surely would. ‘ ‘ The Court: The challenge is overruled. ’ ’ It will he perceived that while the juror candidly admitted his friendship for Capt. McCulloch, he also stated that fact would not influence his judgment in the consideration of the case, but that he would he guided by the weight of the evidence and the instruction of .the court. We think there was no error in overruling the challenge to this juror. [McManama v. Railroad, 175 Mo. App. 1. c. 48-49, and cases cited.] Appellant finally complains that respondent was permitted to introduce its claim-agent, who testified as to the absence of any report to the heads of the department of the respondent company of any accident to appellant’s husband, and the custom and due course of business requiring such reports in all cases of accidents for the information of the managing officers of the respondent. This evidence had no probative force in disproof of the occurrence of the injury. Its only relevancy was to shed light upon the conduct of respondent in failing to take steps which prudence would have suggested if it had been informed of the happening of the accident, and to rehut the unfavorable infer — 613 — enees which might have been drawn from the subsequent conduct of respondent. [1 "Wigmore on Evidence, sec. 286.] We do not think its reception was reversible error. A careful consideration of the record in this case discloses that the issues were presented fully in well-drawn instructions, prepared for appellant and given by the court. The jury, after weighing the evidence, reached the conclusion that appellant had failed to establish the cause of' action alleged. With their conclusions, as to the weight of the evidence, we have nothing to do, provided they were arrived at, as we have found, without prejudicial error intervening at the trial. The judgment in this case is therefore affirmed. All concur.