19 S.W. 53 (Mo. 1892), McGrew v. Missouri Pac. Ry. Co.

Citation:19 S.W. 53, 109 Mo. 582
Opinion Judge:Black, J.
Party Name:McGrew, Appellant, v. The Missouri Pacific Railway Company
Attorney:Alexander Graves for appellant. H. S. Priest and W. S. Shirk for respondent.
Judge Panel:Black, J. Barclay, J., absent.
Case Date:February 22, 1892
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 53

19 S.W. 53 (Mo. 1892)

109 Mo. 582

McGrew, Appellant,

v.

The Missouri Pacific Railway Company

Supreme Court of Missouri, First Division

February 22, 1892

Appeal from LaFayette Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Alexander Graves for appellant.

(1) The court erred in granting instruction, numbered 2, for defendant. First. It is a mere abstract proposition of law not applicable to the evidence and particular case made by the pleadings. Huffman v. Hackley, 34 Mo. 277; Turner v. Loler, 34 Mo. 461. "The proper province of an instruction is to submit questions of fact, not propositions of law." Per Black, J., in Albert v. Besel, 88 Mo. 153. Second. If it be not a mere abstract proposition of law, then it assumes as facts "an unusual increased demand for cars," and that "a sudden and temporary use" existed at some "particular portion of the year." These matters are controverted and constituted the material issue before the jury, and hence the instruction was erroneous. Merritt v. Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Dowling v. Allen & Co., 88 Mo. 293; Moffatt v. Conklin, 35 Mo. 453; Wright v. Fonda, 44 Mo.App. 643, and cases cited. (2) The court erred in granting for defendant instruction, numbered 8, for the same reasons as above given to establish the error in instruction, numbered 2, and the same authorities are here referred to in support of this point. This instruction, numbered 8, is even worse than number 2. (3) Instruction, numbered 12, is erroneous because the entire evidence in the record shows that cars furnished after four P. M. could not be loaded on the same day, the miners quitting work at that hour each day. (4) Instruction 13 for defendant is erroneous. This instruction in plain terms assumes that "a long continued, unusual and unexpected drought, or an unusual, continued and severe cold spell of weather prevailed in the section of country through which defendant's road ran," and, therefore, defendant is exonerated. It was a controverted fact by the pleadings and evidence on both sides as to whether this drought and excessive cold existed in this part of the country, so as to prevent the furnishing of the cars as demanded. This material issue should not have been assumed in favor of the defendant. This assumption was an invasion of the province of the triers of fact, and constitutes reversible error. Merritt v. Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Dowling v. Allen & Co., 88 Mo. 293; Moffatt v. Conklin, 35 Mo. 453; Wright v. Fonda, 44 Mo.App. 643, and cases cited. (5) The court committed palpable error in rejecting the record evidence of the amount earned by defendant "per freight train mile for the years 1886 and 1888." This was competent in rebuttal and would have disproved the allegations contained in the answer by way of affirmative defense, setting up the "unusual drought and excessive cold," whereby the transportation of freight was claimed by defendant to have been more expensive and impossible. (6) Plaintiff should at least have had judgment upon the fourth and fifth counts of the petition, the excuse for not furnishing the cars on the days referred to in them being suspension of work on account of the death of defendant's superintendent. This constituted no defense to said counts.

H. S. Priest and W. S. Shirk for respondent.

(1) There was no material error in giving defendant's second instruction. First. Granting that it is a mere abstract proposition of law, it could have in no way worked prejudice to plaintiff's case. Dodds v. Estill, 32 Mo.App. 41; Forpey v. Independence, 24 Mo.App. 288; Frizille v. Paint Co., 24 Mo.App. 529; Morris v. Railroad, 74 Mo. 367; Bradford v. Floyd, 80 Mo. 207; Carson v. McCormick Co., 36 Mo.App. 461. Second. It is an entire misconception on appellant's part that this "mere abstraction" assumes any fact, disputed or undisputed. Third. The abstract propositions of law therein contained are correctly declared. Hutchison on Carriers, sec. 114; Hutchison on Carriers, sec. 292, and cases cited; Rorer on Railways, p. 1220, par. 1; Faulkner v. Railroad, 51 Mo. 311. (2) There was no error in giving the defendant's eighth instruction. (3) There was no error in giving defendant' instruction, numbered 12. Because plaintiff was unable to load cars delivered to him after four o'clock, owing to the working hours of his miners, did not obligate the defendant to deliver them before that hour. Such a ruling would be absurd. (4) Defendant's...

To continue reading

FREE SIGN UP