Morris v. Missouri, Kansas And Texas Railway Company
| Decision Date | 06 April 1903 |
| Parties | R. M. MORRIS, Respondent, v. MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. John A. Hockaday, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Geo. P B. Jackson for appellant.
(1) There was, therefore, no evidence to warrant the giving of plaintiff's first instruction, nor to justify a submission of the case to the jury. (2) That instruction was farther defective in that it did not require the jury to find that the horses were struck on the crossing--in fact did not in any manner refer to the place of the killing at all. Maxey v. Railroad, 113 Mo. 1; Gurley v Railroad, 104 Mo. 211; Dahlstrom v. Railroad, 96 Mo. 99; Wasson v. McCook, 80 Mo.App. 483.
Webster Gordon for respondent.
(1) Under the respondent's view of this case the failure of appellant to except to the ruling of the trial court, on its motion for new trial, precludes any review of the rulings of which it complains. Ross v. Railroad, 141 Mo. 390; In re Garrison v. Trust Co., 77 Mo.App. 337; Pattison v. Gallimore, 79 Mo.App. 457; Kirk v. Kane 71 S.W. 463.
--This action is for damages alleged to have accrued to plaintiff by reason of defendant's train running against and killing two of his horses. The judgment in the trial court was for plaintiff.
The petition in the cause contains three counts, each charging a killing of the same horses. The second charges that the horses were killed at or near a public crossing in consequence of the negligence of defendant in not ringing the bell or sounding the whistle of its locomotive, and concluded with a prayer for single damages. The third count was for killing in an inclosed field at a point where the road was not fenced as required by statute and where there were no public crossings, and concluded with a prayer for double damages, as provided by statute. The plaintiff dismissed the first count at the close of the evidence and the jury returned a verdict for him on the second count, and for defendant on the third count. Whereupon, the court ordered judgment for the plaintiff on the second count and for defendant on the first and third counts.
The first instruction given for plaintiff was erroneous in that it omits any reference to where the horses got upon the track and merely submits the question whether they were killed in consequence of not ringing the bell or sounding the whistle. The charge in the count of the petition upon which he recovered is that they were struck and killed at a public crossing. The instruction should have been based on the case stated. Wasson v. McCook, 80 Mo.App. 483.
The point is made by plaintiff that defendant did not except to the court's action in overruling the motion for new trial. The defendant denies...
To continue reading
Request your trial