17 Mo.App. 126 (Mo.App. 1885), Ellis v. Wabash, St. L. & P. Ry. Co.

• Citation: 17 Mo.App. 126
• Opinion Judge: ELLISON, J.
• Party Name: ELI J. ELLIS, Respondent, v. THE WABASH, ST. LOUIS & PACIFIC RY. CO, Appellant.
• Attorney: GEORGE S. GROVER for the appellant. No brief on file for respondent. James Sadler, witness for plaintiff, testified as follows: Defendant demurred to the evidence, which being overruled and exceptions saved, and defendant offering no testimony, the court gave for plaintiff, over the objection of ...
• Case Date: March 23, 1885
• Court: Court of Appeals of Missouri

Page 126

17 Mo.App. 126 (Mo.App. 1885)

ELI J. ELLIS, Respondent,

v.

THE WABASH, ST. LOUIS & PACIFIC RY. CO, Appellant.

Court of Appeals of Missouri, Kansas City.

March 23, 1885

APPEAL from Daviess Circuit Court, HON. JOHN C. HOWELL, Judge.

Reversed.

The facts are sufficiently stated in the opinion of the court.

GEORGE S. GROVER for the appellant.

I. There was a complete failure of proof in this action; and for that reason the trial court should have directed the jury to find for the defendant. The Practice Act of the state provides that " when the allegation of the cause of action or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be dee ned a case of variance, but a failure of proof." --Sect. 3702, Rev. Stat., 1879, p. 730.

II. The court admitted incompetent evidence. There was no allegation in the petition concerning the piles of dirt which caused the accident. All such testimony, therefore, should have been excluded, and its admission was reversible error.-- Waldhier v. H. & St. Jo. R. R., 71 Mo. 514; Buffington v. R. R., 64 Mo. 246; Edens v. H. & St. Jo. R. R., 72 Mo. 212; Price v. St. L., K. C. & N. Ry., 72 Mo. 414; Atchison v. Chicago, etc., R. R., not yet reported.

III. The instructions given were erroneous. The first instruction given for plaintiff submitted a cause of action not stated in the petition. In the cases above cited this precise error has been held sufficient to warrant a reversal of the judgment.--See also Bullene v. Smith, 73 Mo. 151; Ely v. St. L., K. C. & N. Ry., 77 Mo. 34. The second instruction had no evidence to support it, and that it should not have been given in such a case is too well settled to need the citation of authorities.

No brief on file for respondent.

OPINION

ELLISON, J.

This action was begun before a justice of the peace in Daviess county on the following statement:

" That the defendant is a corporation organized and existing under the laws of the State of Missouri.

That it is engaged in running and operating a railroad in the township of Grand River, county of Daviess, and state of Missouri.

That the plaintiff was the owner of a certain cow, which, on or about the 1st day of July, 1881, strayed upon defendant's railroad in said township, at a point...