Barr v. Quincy, O. & K. C. R. Co.

• Decision Date: 08 June 1909
• Citation: 120 S.W. 111,138 Mo. App. 471
• Court: Missouri Court of Appeals
• Parties: BARR et al. v. QUINCY, O. & K. C. R. CO.

120 S.W. 111

138 Mo. App. 471

BARR et al. v. QUINCY, O. & K. C. R. CO.

St. Louis Court of Appeals. Missouri.

June 8, 1909.

1. EXCEPTIONS, BILL OF (§ 40)—FILING—EXTENSION OF TIME — AUTHORITY — NUNC PRO TUNC ORDER.

The record is within the control of the trial court during the term, and the Supreme Court will not interfere with its action in correcting its record during the term, so that, where the trial court heard evidence which satisfied it that an order made on the first day of the term, extending the time for filing the bill of exceptions, was not entered by an oversight of the clerk, it could permit the filing of the bill of exceptions by a nunc pro tunc order made during the term, though the order was not based on any written memoranda.

2. CARRIERS (§ 227) — CARRIAGE OF LIVE STOCK—ACTIONS—DISABILITY OF EVIDENCE —CONFORMITY TO PLEADINGS.

In an action for damages to horses shipped, claimed to have been caused by defendant's negligence in handling the train by which some of the horses were thrown down and injured, evidence was improperly admitted to show damage caused by delay at a junction point in forwarding the horses.

3. EVIDENCE (§ 314)—HEARSAY—OPINION OF OTHERS.

In an action for injuries to horses shipped on defendant's train, an answer to a question as to why the horses were allowed to remain in the stock pens to the effect that the connecting carrier would not receive them as the shipment was marked "Bad order" was hearsay, as being the opinion of others as to the bad condition of the horses.

4. APPEAL AND ERROR (§ 206)—PROCEEDINGS BELOW—OBJECTIONS—FAILURE TO OBJECT TO ANSWER.

Where a question was objected to as requiring evidence not admissible under the pleadings, and the answer thereto, which was hearsay, was not itself excepted to, the judgment cannot be reversed because of the improper answer.

5. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR — PREJUDICIAL EFFECT — ADMISSION OF EVIDENCE.

In an action against a carrier for damages caused by negligence in handling the train, by which plaintiff's horses were thrown down in the car and injured, the prejudicial effect of error in permitting a question as to why the horses were delayed in shipment was shown by the answer, which was that the connecting road "wouldn't receive them, marked `Bad order,' until something was done about it."

6. CARRIERS (§ 230)—LIVE STOCK—INJURY— INSTRUCTIONS—CONFORMITY TO PLEADINGS.

In an action for damages for injury to live stock en route, where the petition alleged that the horses were injured by defendant's carelessness, in that other horses were permitted to trample upon horses which were down on the floor, and the latter kicked and injured the other horses, which were also knocked down and trampled upon, an instruction authorizing a recovery if some of plaintiff's horses were injured by being knocked down, thrown, or falling down upon the floor, etc., was erroneous, as authorizing a recovery on a different theory than that alleged.

7. TRIAL (§ 256)—INSTRUCTIONS—NECESSITY —MORE SPECIFIC INSTRUCTION.

In an action against a carrier for injuries to horses by being thrown down in the car, if an instruction that, if the horses were thrown down by a jolt or jerk of the train and injured, etc., defendant was liable was defective, as not stating what constituted such negligence as produced the unusual jolting, defendant should have requested such an instruction, and, not having done so, cannot complain of that given.

8. TRIAL (§ 120)—MISCONDUCT OF COUNSEL —ARGUMENT WITHOUT THE EVIDENCE.

In an action for injuries to horses by being thrown down in the car and injured while en route, plaintiff's counsel stated in argument that a witness said that sometimes, while he was riding on a freight train over defendant's road, there was an extraordinary jerk, which

remark was objected to as not within the evidence, and the court stated that that evidence was excluded, when plaintiff's counsel remarked: "I know he said it. I didn't know it was excluded but he said it"—to which defendant objected, but the court did not rule thereon, or rebuke plaintiff's counsel. Held, that the repetition of the statement as a fact in evidence was reversible error.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

Action by W. D. Barr and others against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

The petition in this case when filed consisted of two counts, each of them setting out, with great particularity, the causes of action upon which plaintiffs rely. At the trial, and after the court had given its instructions to the jury, the second count was dismissed by plaintiffs. It is only necessary to notice the first count. This first count avers the shipment of a car load of horses by plaintiffs over the road of defendant from Maywood, in Lewis county, this state, to Quincy, Ill., and charges that the horses were in good condition when loaded, but were not delivered in good condition to plaintiffs at Quincy, but that the defendant had so negligently and carelessly run and operated the train to which the car load of horses was attached, and so misbehaved in regard to the same as a common carrier, in that it negligently suffered and permitted six of the horses to be bruised, injured, and damaged by the carelessness and recklessness of its agents and servants in charge of the train, so that the six horses which were knocked down, thrown, or fell upon the floor of the car in which they were being carried were carelessly and negligently allowed to remain down on the floor by the agents and employés of defendant, and that these employés negligently and carelessly allowed and permitted other horses in the car to trample upon and bruise and injure horses so carelessly allowed and permitted to remain upon the floor of the car, and that, while lying on the...