Ashby v. Elsberry and New Hope Gravel Road Company
| Decision Date | 24 January 1905 |
| Parties | ASHBY, Respondent, v. ELSBERRY AND NEW HOPE GRAVEL ROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. H. W. Johnson, Judge.
AFFIRMED.
Judgment affirmed.
Wheeler & Powell and W. A. Dudley for appellant.
(1) The court erred in admitting evidence of the habit or custom of cattle and "stock" as to running on defendant's road. Ashby v. Gravel Road Co., 99 Mo.App. 178, 73 S.W. 229. (2) The court erred in his verbal declaration of law that the presence of "stock" unattended on the road was evidence of negligence on defendant's part and that defendant must keep the road clear. Even if written it would have been error. Wright v. Richmond, 21 Mo.App. 76; State v. Rothschild, 68 Mo. 52. (3) The court erred in allowing plaintiff to read the transcript of the evidence of the witness Watson, to the jury and impeach him under the pretense of refreshing his memory. Dunn v Dunnaker, 87 Mo. 597; Brown v. Wood, 19 Mo 475. (4) The court erred in giving instruction numbered 7 allowing a recovery for medical and surgical attention. Her husband was liable for this expense and entitled to recover it in his action against defendant, if anybody is. It was not shown Mrs. Ashby ever contracted to pay it. Hill v Sedalia, 64 Mo.App. 494; McLean v. Kansas City, 81 Mo.App. 72. Nor does said instruction properly limit the jury to specific elements of damages. Jocquin v. Cable Co., 57 Mo.App. 320. (5) Plaintiff's eighth instruction is erroneous, leaving it to the uninstructed notions of the jury as to what degree of care defendant was required to exercise. It is contrary to all the definitions of negligence. Wharton on Negligence, sec. 3; Bishop on Non-contract Law, sec. 436; Lloyd v. Railroad, 128 Mo. 595, 29 S.W. 153, 31 S.W. 110; Hartman v. Muchlebach, 64 Mo.App. 565; Anderson's Law Dictionary, Titles Care, Sub-title, Ordinary Care. (6) The court erred in excluding the evidence of the witness Reid on the topography of the grounds about the Stephens bridge. Madden v. Railway, 50 Mo.App. 666; Greenwell v. Crow, 73 Mo. 638; McPherson v. Railroad, 97 Mo. 253, 10 S.W. 846.
Norton, Avery & Young and Nathan Elliott for respondent.
(1) "When all the legal propositions presented on the second trial are passed upon in the former trial, the law of the case is settled on the first appeal." Carey v. West, 165 Mo. 452, 65 S.W. 713; Lawson v. Spencer, 90 Mo.App. 514. "And only such questions will be inquired into as were not determined in the previous decisions." Livingston v. Allen, 87 Mo.App. 179; Printing Co. v. Protective Association, 81 Mo.App. 467. "And the rulings in first appeal must govern in the second, even though they are erroneous." Hume v. Eagon, 83 Mo.App. 576; Wolf v. Ins. Co., 86 Mo.App. 580. (2) Under this subdivision of his brief and argument, appellant first complains that the court erred in not permitting witness Reid to give an opinion as to whether the road at the place of the injury could have been made wider, taking into consideration the topography of the surrounding land. Respondent objected to Reid giving his opinion for two reasons: First, because Reid had not qualified as an expert, and second, because the subject-matter was not such as required or admitted of expert testimony. St. Louis v. Babcock, 156 Mo. 148, 56 S.W. 731; State v. Murphy, 90 Mo.App. 548; Johnson v. Boonville, 85 Mo.App. 199.
1. This cause was appealed here on a former occasion and is reported in 99 Mo.App. 178. The evidence on the second trial is substantially the same as on the first one. In the opinion filed by Judge GOODE on the former appeal, a full and fair statement of the pleadings and facts, as shown by the record, is set forth and we adopt his statement in full. The last trial resulted in a verdict and judgment for plaintiff in the sum of six hundred and fifty dollars, from which defendant duly perfected its appeal.
One of the allegations of negligence in the petition is, that the defendant permitted cattle to run unattended upon its road. In the opinion on the former appeal it is said: "There is nothing in this case to show that it amounted to negligence to let cows stray on the road from cross-roads to the extent they did." Over the objection of the defendant, plaintiff was permitted to show that cattle, unattended, did stray upon the road. This ruling is assigned as error.
The jury was expressly instructed that defendant was not required to keep stray cattle off of its road and could not be convicted of negligence if they strayed upon it. This instruction practically withdrew from the jury all the evidence in regard to cattle straying on the road except the mere fact that they were on it at the time and place of the injury; to show this latter fact was a part of plaintiff's case and so connected therewith that proof of it could not be dispensed with. In this same connection the court, in passing on objections to evidence offered to show that cattle strayed upon the road, made the following oral declaration or statement in the presence of the jury, to which defendant objected and excepted at the time:
"The objection is overruled in this view of the case, that the gravel road charging toll for the use of the road must keep the road clear like a road overseer must keep the public highway clear of obstructions, and it might possibly be an element in the case."
Defendant's objection was not carried forward in the motion for new trial and is nowhere mentioned or referred to in said motion.
In Harris v. Powell, 56 Mo.App. 24, this court, in passing upon a similar objection in like circumstances, said:
In respect to the same character of evidence, Watson, a witness for plaintiff, was partially examined by referring to his evidence on the former trial as preserved in the bill of exceptions, to which mode of examination defendant duly objected and excepted. If the witness was reluctant, or if his memory was clouded, we can see no impropriety in this course of examination. It was a matter resting very largely in the discretion of the trial judge and if it does not appear he abused his discretion, such an examination, though out of the usual course, does not call for a reversal of the judgment. We observe nothing in the record in respect to the examination of this witness to convince us that the trial court abused its discretion in regard to the mode and manner of his examination.
2. The contention is made that the instructions given for plaintiff are erroneous. In respect to the general instructions, it suffices to say that after a careful reading of them we think they are in harmony with the opinion of this court delivered on the former appeal. They are confined to the issues raised by the pleadings and are supported by the evidence. Special objections, however, are made to instructions numbered seven and eight which read as follows:
The objection to number eight, defining ordinary care, is in the use of the phrase "would or should exercise." The...
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