Clark v. Chicago & A. Ry. Co.

• Decision Date: 01 April 1902
• Citation: 67 S.W. 746,93 Mo. App. 456
• Court: Missouri Court of Appeals
• Parties: CLARK v. CHICAGO & A. RY. CO.

67 S.W. 746

93 Mo. App. 456

CLARK v. CHICAGO & A. RY. CO.

Court of Appeals of St. Louis, Missouri.

April 1, 1902.

APPEAL—DEMURRER TO EVIDENCE—WAIVER— EVIDENCE—SUFFICIENCY—REVIEW—RECORD.

1. Where, after a refusal of a peremptory instruction in the nature of a demurrer to plaintiff's evidence, defendant puts in his evidence, such action waives his exception to the refusal, except that the appellate court may consider the same in connection with all the evidence.

2. Where an appellant has not brought up all the evidence, but only stated what a part of it tended to prove, and has not even preserved the substance of it in the abstract of the record, the sufficiency of the evidence to sustain the verdict cannot be reviewed.

Appeal from circuit court, Audrain county; Elliott M. Hughes, Judge.

Action by W. N. Clark against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Franklin Houston, for appellant. Fry & Clay, for respondent.

GOODE, J.

Respondent was injured while in the appellant's service by being hurled from a hand car on which he was riding along appellant's railway to his work. The hand car ran off the rails while rounding a sharp curve, precipitating the respondent head foremost down an embankment, and thus stunning and otherwise hurting him. Among the assignments of negligence are the following: "Plaintiff says that said hand car on which he was being carried over said track was old, defective, and worn, and out of repair, and that the rails in said track at said point were worn and out of repair, and were too small for use on curves, especially a short curve like the one where said hand car was derailed." At the conclusion of the plaintiff's case a peremptory instruction in the nature of a demurrer to the evidence was presented to the circuit court and refused, and the only assignment of error on the appeal is that the court therein committed error. Appellant did not stand on its demurrer to the testimony introduced by the respondent, but, as its abstract states, "introduced evidence tending to sustain all the issues, contentions, and defenses on its part," enumerating them. At the conclusion of the testimony the court gave five instructions at the request of the plaintiff, and seven at the request of the respondent, which amply and satisfactorily covered every phase of the case, and no point is made about them here.

In our judgment there was sufficient evidence to be submitted to the...