O'Connell v. St. Louis Cable & Western Railway Co.

106 Mo. 482

Opinion

Barclay, J.

The plaintiff ’s story of his injury (in consequence of negligent management of a cable car while he was taking passage upon it) is directly denied by the railway officials ; but the issue of the truth of his account of the affair was one for the triers of fact. There is substantial evidence to support their finding on that issue, and hence we cannot'retry it.

Defendant, however, makes certain points of objection here to the instructions given and also against the amount of the recovery. They will be considered in order, as made.

I. As to the instructions : It is claimed that those numbered 1, 2 and 3 are erroneous as assuming controverted facts, namely, that plaintiff was on the defendant’s car, and that the latter was rapidly started around a certain curve.

We do not regard this criticism as sound. The instructions plainly require the jury to find the existence of the facts mentioned, to warrant a verdict for the plaintiff. Taken together (as they should be in determining their effect and meaning) they evidently do not intend to assert as true the facts alluded, to. If that were their purpose, there would be little else to submit to the jury but the amount of the recovery, and they would have had entirely different forms and terms. Reading the whole series together we think this objection of defendant untenable.

Exception is also taken to instructions, numbered 2 and 4, as stating the rule of liability of carriers of passengers too strongly in favor of plaintiff. All that need be said on that point is that these instructions conform to recent rulings here on that subject, the reasons for which need not now be repeated. Waller v. Railroad (1884), 83 Mo. 608; Furnish v. Railroad (1890), 102 Mo. 438.

II. As to the amount of damages, the last ground of error assigned, we need merely say that in view of the nature and extent of plaintiff’s injuries (outlined in the statement accompanying this opinion) we do not regard the amount of the judgment ($5,000) as sufficiently large, in the circumstances, to warrant the interference of this court.

We, therefore, affirm the judgment.

All the judges of this division concur.