Appellant, in its motion for rehearing, insists that the question whether or not there was a negligent act committed by the engineer Hobart was virtually withdrawn from the jury by the charges given, and the jury thereby allowed to find the defendant liable simply from the fact that he was an unfit employe, and that defendant had him in its employ, knowing this. Appellant contends that thus the vital issue was not submitted, but that the case was submitted and determined on a collateral issue, as above indicated.
An inspection of the record shows this position to be a mistaken one.
That portion of the charge of the court set forth literally in the beginning of the motion for rehearing, and which is questioned as not requiring the jury, before finding for plaintiff, to find that his injury resulted from the negligence of the engineer Hobart, does in our opinion make such a finding a condition to plaintiff's recovery. The language of the charge is as follows: "If the plaintiff has shown that the defendant failed to use ordinary care and diligence in employing the engineer (Hobart) who operated the pusher locomotive, as is required under the above instructions given, and that he was a careless and reckless man, and that the injury complained of wasoccasioned as the direct or proximate cause thereof," etc.
How the plaintiff could have sustained an injury through the reckless or careless disposition of the engineer except through some act of carelessness or recklessness on his part, we can not imagine.
The final and nineteenth clause of the court's main charge is as follows: "It is for you to determine from all the evidence before you what was the proximate cause of the injury complained of; but unless you find that the defendant was negligent in employing the engineer Hobart, and that he was careless and reckless, and thereby caused or contributed to the injurycomplained of, without any fault on the part of the plaintiff, then you will find for the defendant."
We believe it can not be seriously asserted that the case thus submitted was submitted on the issue of whether or not the engineer, being a reckless person, the defendant knew to have been such. This issue is denominated a mere collateral issue in the case. It was as important and as necessary an issue, leading up to defendant's liability, as the particular act of the engineer from which the injury was claimed to have resulted. It would have been as fatal to the judgment for the court to omit one of the issues as the other, but we would not be justified in reversing the judgment simply because one of these issues may have been presented somewhat more distinctly than the other. A jury must be presumed to possess that much capacity as will enable them to understand a charge that is expressed in ordinary *Page 182 clear language. No principle of practice is better established than that the entire charge should be looked to, to determine its sufficiency. Great stress is laid upon a special charge given by the court, which reads as follows: "The jury are instructed that the engineer Hobart, Paterson and Chapman, the brakeman and fireman, and L.D. Cappock, trainmaster or train dispatcher, all and each of them were fellow servants of conductor James Musette, the plaintiff, and any injury suffered by the plaintiff through want of care or negligence on the part of any of said coservants was such injury as was incident to the service of plaintiff as conductor, and for which he can not recover."
This special charge appellant says excluded from the consideration of the jury the negligence of the engineer Hobart in leaving his engine at a moment of peril, the vital point in the case.
As we have already seen, this question had been in fact submitted in the main charge, and we are at a loss to understand what effect the above special charge could have unfavorable to the defendant. It was misleading only in favor of defendant, and it must be borne in mind that it was prepared and asked by defendant. If it tended to make more prominent the issue as to the engineer being a known unsuitable employe, and less prominent the issue as to the particular act of negligence, the defendant ought not to be heard to complain. We are led to believe, from defendant having requested this charge in this form, that it did not upon the trial lay much stress on the issue of the negligent act of the engineer. Moreover, the point here relied on was not raised in the District Court, as a reading of the motion for new trial will show. It ought not be given any effect here under these circumstances, even if it would under other conditions have had the effect ascribed to it, which we do not believe was the case.
We see nothing in what is advanced to require us to recede from our views as to the act of the engineer in abandoning his engine being taken as the proximate cause of the misfortune to plaintiff.
The tenth ground presented in the motion proceeds upon the idea that under the charges the jury were allowed to consider plaintiff's loss of time and mental suffering, which appellant claims were not claimed as matters of damage in plaintiff's pleadings. The charge given authorized a recovery by plaintiff for such sum as would compensate him for his injury, and the court's language is: "And in this connection the jury may take into consideration the loss of time, if any, to cure him of such injury, the extent and duration of such injury, and the impaired ability, if any, of the plaintiff to earn money caused by the injury, and he will be entitled to such damages as will simply compensate him, if you find him entitled to recover." The items mentioned are embraced in the allegations of the petition, and nothing appears anywhere as to mental suffering. And this question was not raised below, nor in the briefs in this court. *Page 183
The other matters relied on for a rehearing we do not regard as well founded, and they are sufficiently discussed in the opinion already delivered. For these reasons the motion will be overruled.
Motion overruled.