Gessley v. Missouri Pacific Railway Co.

1. PR~CTICE-INSTRUOTXON~- OTFIos~ o~'-Issuus TO nu LIMITED TO PLELDncGS.-InstructiOns should ~e1l the jury what the issues are, and should limit the issues to those made by the pleadings. Where issues are submitted so as to include averments not made by the petition, it is error. 2. -- MUST BE BASED ON EVIDENOE.-Instructjons should not be given when there is no evidence on which to predicate them.

ERROR to }Iowara Circuit Court, HON. €f. IT. BUROK.. HARTT, Judge. The oase is suffioiently stated~ in the opinion. I. Plaintiff in error maintains that the petition `n~owhere shows the parties in charge of the engine, or any other agents or servants of defendant, knew, or could, by ordinary care and diligence, have known, plaintiff was in the car at the time the engine backed against and moved it, and there is no act charged against the persons who ran the engine on the side track that shows it was run in any other than the ordinary way of backing on to the side track. Pier et al. v. Heinrichoffen et al., 52 Mo. 333; Maher v. Railroad, 64 Mo. 267; Inhabitants of Clinton v. Williams, 53 Mo. 141, and cases therein cited.. 1 Rorer on Railroads, 488, 697. The petition nowhere alleges that the parties in charge of the engin~ were acting in the line of their employment, and. it is held by the courts they must be so acting. Gaentzen v. DurnTde, 50 Mo. 104; Mathews v. Hunter, 67 Mo. 289 ; GooTc v. Putnam County, 70 Mo. 668. II. Plaintiff in error maintains there ■ was no evidence to show the parties in charge of the engine, or any employes or servants of defendant, knew, or could, -by ordinary care and diligence, have known, plaintiff was in the car at the time the engine backed out the sidetrack and moved the car, nor does plaintiff’s evidence-show the parties in charge of the engine were acting in the line of their employment; all it does show is, that' plaintiff was in the car at work; the engine backed on the side track; he did not know it was coming on that track until his car was moved ; that he was hurt, and no one notified him, does not show the persons in charge of' the engine could have discovered him by any sort of diligence. Plaintiff sues the master for negligence of the-servants, and must prove it. 1 G-reenl. on Evid. [14-Ed.] sect. 74, and note; Rorer on Railroads, 488, 697;. Railroad v. Kelly, 94 U. S. 475 ; 2 Rorer on Railroads,. 1038, and authorities cited to first ground of error. III. Plaintiff in error maintains that the instruction of plaintiff required the jury to pass upon facts not in evidence. It directed them to take into consideration the age and circumstances in life of plaintiff. There is-not a scintilla of evidence as to either of these facts. They are to guess at or learn them from some source-outside the evidence, and they must consider them. Hinds v. The City of Marshall, 22 Mo. App. 208; State-v. Thompson, 83 Mo. 257; State ex ret. Fullcerson v.. Emerson, 74 Mo. 607; Price v. Railroad, 76 Mo. 508. IY. The court erred in refusing instructions asked by defendant, to the effect that the facts alleged in the-petition do not create any liability against the defendant. Y. The court erred in giving instruction asked by plaintiff, to the effect that, if plaintiff was hurt by the?negligence of defendant’s servants, to find for himr without restricting them to the acts set out in the petition, or defining what negligence is, in said instruction, or any other instruction. Abbott v. Railroad, 83 Mo. ■271; Price v. Railroad, 71 Mo. 416 ; Waldhier v. Railroad, 71 Mo. 514; Edens v. Railroad, 72 Mo. 212; Bank v. Murdock, 62 Mo. 70; Zimmerman v. Railroad, 71 Mo. 491. I. The petition is sufficient. Rev. Stat. 1879, sect. 8511; Qoudy v. Railroad, 85 Mo. 79; Carlisle v. Railroad, 82 Mo. 40; Railroad v. Haskins, 3 West. Rep. 449; McPheeters v. Railroad, 45 Mo. 22; Schneider v. Railroad, 75 Mo. 295 ; Mack v. Railroad, 77 Mo. 232 ; McNees v. Railroad, 22 Mo. App. 224; Clay v. Railroad, 17 Mo. App. 629. II. The court did not commit error in overruling the demurrer to the evidence. The evidence showed plaintiff was injured without any fault on his part; he makes out a prima facie case, and the onus is cast upon the defendant of relieving itself from the responsibility, by showing that the injury was the result of an accident, which the utmost skill, foresight and diligence could not have prevented. Hipsley v. Railroad, 88 Mo. 348, and authorities there cited. III. Instruction numbered two, given for plaintiff, properly declared the law in cases of this kind; it did not require the jury to consider facts not in evidence, for, upon examining said instruction, the following-qualifying words will be found at the end thereof, “ as shown by the evidence in the case ;55 now the jury were only directed to take into consideration the age and situation of plaintiff, as shown by the evidence; if there was no evidence of his age and situation, then the jury, under this instruction, were not directed to consider it. Rut there was evidence of his age. Mr. Kivett testified, “that, after G-essley fell, he tried to get up, and the conductor walked up to him and said, ‘ old man, are you hurt?’ and Gessley said, ‘I don’t know,’ etc.” Besides, it was within the province of the jury, who had Mr. Gessley before them, to judge of Ms age. Nagel v. Railroad, 75 Mo. 653. The instructions should be considered as a whole. The sixth, given for defendant? told the jury that “ the question as to amount of damages is a question of fact, to be proved like any other fact, and, if the jury should find for plaintiff, they can only assess such amount of damages as he has shown, by the evidence, he has sustained.” This instruction, taken in connection with the second, given for plaintiff, leaves no ground for complaint by plaintiff in error. The instruction complained of', however, has been approved by our supreme court, in a case similar to this. Whalen v. Railroad, 60 Mo. 322 ; also, by the Kansas City Court of Appeals ; Thomas v. Railroad, 20 Mo. App. 485. The case cited by plaintiff in error (Hinds v. City of Marshall, 22 Mo. App. 208) finds no application to the case at bar; the faulty instruction in that case told the jury to take into consideration “the age and condition in life,” etc., without regard to the evidence in the case ; whilst, in the instruction complained of, the jury are especially restricted, in their deliberations, to the facts “ as shown by the evidence in the case;” besides, in the case cited, the court take occasion to say “that the age of plaintiff may be a proper element for the consideration of a jury, in estimating damages for personal injury, where the evidence tends to show that the injury will probably be permanent in its character,” exactly the case under consideration. IV. Instructions refused to defendant should not have been given, as they were in furtherance of the claim that the petition did not state a cause of action. No error was committed in their refusal. Y. Nor did the court err in giving the instruction asked by plaintiff, as to the negligence of defendant, since it expressly restricts the jury to the issues mentioned in the petition. Whalen v. Railroad, 60 Mo. 323-