Webb v. Baldwin

CAULFIELD, J. (after stating the facts). — I. The trial court did not err in refusing to give plaintiff’s instruction No. 3 telling the jury they should consider the evidence of defendant’s verbal admissions with caution. Plaintiff would have been helped, not hurt, if the jury too freely accepted the evidence (it consisted solely'of plaintiff’s own testimony) of defendant’s admissions, therefore the refusal of this instruction could not have been prejudicial to the plaintiff. If the instruction was intended to refer to evidence of plaintiff’s admissions there is nothing to indicate that fact, and the trial court cannot be convicted of error in treating the instruction according to its face value to the party offering it, which was nothing. Besides, there is controlling authority for the proposition that an appellate court will not reverse a case because of the refusal of the trial court to instruct that evidence or verbal admissions is to be received with caution. [State v. Clump, 16 Mo. 385.] We need not pass on the question whether this instruction would have constituted an improper comment on the evidence. II. Plaintiff contends that the judgment should be reversed because by giving defendant’s instructions No. 1½ and No. 2 the trial court referred the jury to the pleadings to learn what the issues were, but'we are not so persuaded. Reference in an instruction to the pleadings where the facts necessary to be found are fully told in other instructions will not war [251] rant a reversal of a judgment. [Brown v. Railroad, 104 Mo. App. 691, 78 S. W. 273.] In this case the facts necessary to be found were fully told in plaintiff’s instruction No. 1, which fully and properly dealt with all the allegations of negligence contained in plaintiff’s petition. It may also be said concerning defendants’ instruction No. 2, that it does not refer the jury to the' petition to ascertain the issues involved, but simply tells them that the burden of proof rests upon plaintiff to establish such issues. [Sherwood v. Railway Co., 132 Mo. 339, 33 S. W. 774.] III. Nor is there any merit in plaintiff’s criticism of the action of the trial court in giving defendant’s instruction No. 3. Substantially similar instructions were approved by our Supreme Court. [Henry v. Grand Ave. Ry. Co., 113 Mo. 525, 21 S. W. 214; Feary v. Street Ry., 162 Mo. 75, 62 S. W. 452; Maxey v. Street Ry. Co., 95 Mo. App, 303, 68 S. W. 1063.] It is true that in the instructions so approved, the word “accident” alone occurred and not the words “accident or casualty,” but the difference is immaterial as “casualty” is a synonym for “accident.” Indeed the instruction in the case at bar is more to be commended as .against an objection from the plaintiff than were those which the Supreme Court approved, for it expressly states that the “accident or casualty” must have been without negligence on the part of the defendant, while in the instructions so approved this thought was left to be inferred from the use of the word “mere,” the words “mere accident” being held to mean, or be equivalent to, the words “not by defendants’ negligence.” Plaintiff suggests, however, that there was no evidence in this case that the fire occurred through “casualty or accident,” but this suggestion does not meet with our approval. The injury must have happened by inevitable accident, or by someone’s negligence. [Maxey v. Street Ry. Co., 95 [252] Mo. App. 303, 309, 68 S. W. 1063.] As the law, in the absence of proof to the contrary, indulges a presumption against negligence, the jury, if not convinced by the evidence that some one was negligent, might well have found that the injury happened by inevitable accident although there was no proof that it did so happen. This should be especially true in this case where the cause of the fire could be established, if at all, only by inference from disputed circumstances. IY. Nor were defendants’ instructions Nos. 4 and 4½ fairly open.to the objection that they single out one particular act or fact at issue and place undue prominence upon it. By giving No. 4 the court did no more than point out distinctly to the jury one of the issues of fact formed by the pleadings and instruct them separately on it. This was not error. [Coleman v. Drane, 116 Mo. 387, 22 S. W. 801.] In instruction No. 4½, the court, in placing the burden of proof upon plaintiff, mentioned one issue particularly and the others generally. If by so doing it had singled out as a controlling issue that which was not one in fact, this would have amounted to misdirection and been error, as, if it had given the impression that it was absolutely necessary to prove one particular ground of negligence and not sufficient to prove any of the others; but it did not do that. The question whether sparks from defendants’ engine caused the fire was, from defendants’ standpoint, a controlling issue in the case, without proving the affirmative of which, plaintiff could not possibly prevail and all other issues would become unimportant. At the most, this instruction might be said to have singled out as a controlling issue that which was one in fact. If so it was legally correct and plaintiff cannot fairly complain of it. A plaintiff and defendant occupy different positions where there are two issues in the case, each of [253] which the plaintiff must establish affirmatively before he can recover. In snch case it is as important to plaintiff’s right of recovery that he establish the affirmative of one of such issues as that he establish the affirmative of the other, and instructions given at his instance which purport to- state what is necessary for him to prove in order to recover should lay equal stress upon both issues or the jury may be misled to defendant’s prejudice; but it is different with the defendant. In order that he shall prevail he need meet and overcome plaintiff’s evidence as to only one of such issues, and if he lay stress only on the necessity of plaintiff proving one, treating the other as not so important for plaintiff to prove, he is but taking the risk of aiding plaintiff; and of this the latter surely has no just cause for complaint. At least we know of no rule of law which requires defendant, by evidence or instruction, to meet and deal equally with all the issues when it is sufficient that he meet and defeat plaintiff as to one. It is strictly in accordance with the settled practice for him, by evidence and instruction, to direct his defense wholly against any one issue, which plaintiff must prove the affirmative of in order to recover, and for him to ignore the others entirely or deal with them generally as was done here. Of course an instruction should not be so drawn as to indicate the opinion of the judge on a question of fact necessary for the jury to decide, but this instruction does not err in that respect. Neither was it erroneous because it failed to point out to the jury what “other facts” were necessary to be proven by plaintiff in order to entitle him to recover. Such “other facts” were sufficiently pointed out in the other instructions. V. Lastly, plaintiff complains of defendants’ 5th instruction, that it injects into the case a ground of negligence not pleaded, viz., that defendants were neg [254] ligent in-not providing and using a proper engine. It is sufficient to say of this that plaintiff’s right to recover on proof of any of the grounds which were pleaded was not affected by this instruction, nor was the burden upon plaintiff made any greater thereby. At the most it may have tended to give the jury another reason for finding in favor of the plaintiff. The jury was not misled to plaintiff’s prejudice. On the whole we are of the opinion that this cause was fairly tried without substantial error. The judgment is affirmed. Reynolds, P. Jv and Nortoni, J., concur.