
    
      Daniel Gessley, Defendant in Error, v. The Missouri Pacific Railway Company, Plaintiff in Error.
    
    
      Kansas City Court of Appeals,
    
    
      May 5, 1887.
    
    
      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.
    
    
      Re'ôersed a~d rern~ctnded.
    
    
      The oase is suffioiently stated~ in the opinion.
    
    
      W. A. MARTIN, for the plaintiff in error.
    
    
      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.
    Samuel C. Majos, for the defendant in error.
    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-
   Hall, J.

This was an action for personal injuries.

The court gave two instructions for plaintiff. The first instruction was as follows :

“1. The jury are instructed that, if they believe, from the evidence, that the defendant, through the negligence or carelessness of its agents, and without negligence on the part of plaintiff, inflicted upon the plaintiff' the injuries mentioned in the petition, they will find for the plaintiff, and assess his damages at such sum as they may think he is entitled to, not to exceed the sum iff' three thousand dollars, the sum claimed in the petition.”

Instructions should tell the jury what the issues are. Cocker v. Cocker, 2 Mo. App. 451; Butcher v. Death & Teasdale, 15 Mo. 271. The instructions should limit the issues to those made by the pleadings. Hassett et al. v. Rust et al., 64 Mo. 325; Abbott v. Railroad, 83 Mo. 271, The above instruction was faulty in this, that, instead of' confining the issues, as to the defendant’s carelessness and negligence, to the carelessness and negligence alleged in the petition, it submitted the issue in such broad, general and unqualified terms as to refer to, and include, any carelessness or negligence whatever, on the part of the defendant’s agents, whether alleged in the petition or not. The instruction should, in plain terms, have stated the acts of negligence on the part of the defendant, alleged in the petition, and in proof, which it was necessary for them to find, from the evidence, in order to find a verdict against the defendant.

This fault in the instruction was not cured by the instruction submitting to the jury the question as to whether the carelessness or negligence, mentioned in the instruction, caused the injuries mentioned in the petition. ■ 8

The second instruction given for the plaintiff was as follows:

“2. The court instructs the jury that, if they find for the plaintiff, they should, in estimating the amount of damages, take into consideration the age and situation of tke plaintiff, his bodily suffering and mental anguish resulting from the injury received, and the extent to which he was disabled from making a support for himself by reason of the injury received, as shown by the evidence in the case.'1'’

There was no evidence whatever of the age or the situation in life of the plaintiff.

Instructions should not be given when there is no evidence on which to predicate them. Hinds v. City of Marshall, 22 Mo. App. 208. The instruction given in that case told the jury that, in estimating the damages, they should take into consideration the age and condition in life of the plaintiff. The instruction was held objectionable for the reason that there was no evidence of. the age or the condition in life of the plaintiff.

The instruction in the present case differs from the instruction in that case in this only, that the instruction in this case uses the word “situation,” unqualified by any explanatory words, instead of the words, “condition in life,” and restricts the jury to such damages as are shown by the evidence.

The difference is not in favor of the instruction here ; if the difference is of any effect, it is rather against the instruction in the present case. We supply the words, “in life,” in connection with the word, “ situation,” in order to give to the latter word a meaning ; and the restrictive words, “as shown by the evidence,” although unnecessary to explain to the jury that they were bound by the evidence, being expressly used, simply make more glaring the error of the court in telling the jury to consider that of which there was no evidence whatever. The suggestion, by plaintiff ’s_ counsel, that the plaintiff testified as a witness, that he was thus seen by the jury, and that they could have determined his age from this inspection of him, was fully considered in Hinds v. City of Marshall (supra).

It is, under the foregoing views of the instructions noticed, unnecessary to pass upon the sufficiency of the petition after verdict, but we would suggest to plaintiff’s ■counsel the advisability of so amending the petition as to make it conform to the petitions in the cases cited by him in support of its sufficiency, by expressly averring negligence on the part of the defendant’s servants and agents, in the commission of the acts complained of; such, for instance, as the management of the train which caused the injury.

The judgment is reversed and the cause is remanded.

All concur.  