Beckwith v. City of Malden

• Decision Date: 26 June 1923
• Citation: 253 S.W. 17,212 Mo.App. 488
• Parties: JUNIUS BECKWITH, a Minor, by Next Friend, Respondent, v. CITY OF MALDEN, Appellant
• Court: Missouri Court of Appeals

253 S.W. 17

212 Mo.App. 488

JUNIUS BECKWITH, a Minor, by Next Friend, Respondent, v. CITY OF MALDEN, Appellant

Court of Appeals of Missouri, Springfield

June 26, 1923

Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.

AFFIRMED.

Judgment affirmed.

George Smith and T. R. R. Ely for appellant.

(1) In Missouri the courts are refusing to extend the principle of the "turntable" cases and are restricting liability to literal "turntable cases." Kelly v Benas, 217 Mo. 1; Capps v. City of St. Louis, 158 S.W. 616, and cases cited; Overholt v. Veiths, 93 Mo. 422; Witte v. Stifel, 126 Mo. 295; Schmidt v. Distilling Co., 90 Mo. 295; Smith v Dold Pkg. Co., 82 Mo.App. 9; Stall v. Tel. Co., 141 Mo.App. 183; Fink v. Railway, 143 S.W. 568; Redenour v. Cable Co., 101 Mo. 27; Williams v Springfield Gas and Elec. Co., 274 Mo. 1. (2) It was error to permit plaintiff to prove that the insulation was worn off of other wires at other places in the city at the time of the injury. Bowles v. Kansas City, 51 Mo.App. 416; Goodson v. City of Des Moines, 20 N.E. 173; Hipsley v. Railroad, 88 Mo. 349; Kinney v. Railroad, 70 Mo. 251; Moody v. Railroad, 68 Mo. 470; Lester v. Railroad, 60 Mo. 265; Reed v. Railroad, 60 Mich. 227. (3) The court erred in refusing to give defendant a new trial for the reason that the verdict was excessive. Wagner v. Metropolitan St. Ry. Co., 142 S.W. 463; Davenport v. King Elec. Co., 145 S.W. 454; Parker v. Mo. Pac. Ry. Co., 147 S.W. 489; Riley v. City of Independence, 167 S.W. 1022; Hashert v. Lusk, 177 S.W. 712, and cases cited.

Casper M. Edwards and Sam M. Phillips for respondent.

(1) In determining whether a bill of exceptions was filed in time, the first day of the thirty days' time must be excluded and the last day included. Brocker v. Grayson, 130 Mo.App. 366; Fulkerson v. Murdock, 123 Mo. 292; Linahan v. Barley, 124 Mo. 560; Graham v. DeGuire, 154 Mo. 88; Rogers v. Wilson, 119 S.W. 369, 220 Mo. 213; R. S. 1919, sec. 7058, 4th sub-division. (2) The record must show affirmatively that the bill of exceptions was tendered, signed and filed within the time prescribed by statute, and if it was not filed within the time prescribed by statute, it will not be considered upon appeal. 4 Corpus Juris, 61, Note 27; Miller v. New Madrid Banking Co., 235 Mo. 522, 139 S.W. 192; Southern Mo. R. Co. v. Wyatt, 233 Mo. 347, 122 S.W. 688; Elliott v. Delaney, 217 Mo. 14, 116 S.W. 494; Shemwell v. McKinney, 214 Mo. 692, 114 S.W. 1083; Eau Claire Lbr. Co. v. Howard, 76 Mo. 517; Baker v. Loring, 65 Mo. 527; Courtney v. Nat'l Annuity Asso. (App.) 126 S.W. 987; Walsh v. Patterson, 135 Mo.App. 345, 115 S.W. 1027; Wendleton v. Kingery, 110 Mo.App. 67, 84 S.W. 102; Hugumin v. Hinds, 97 Mo.App. 346, 71 S.W. 479; Biles v. Beadle (App.) 71 S.W. 465; Kirk v. Kane, 97 Mo.App. 556, 71 S.W. 463; Lucas v. Huff, 92 Mo.App. 369. (3) It is the undoubted law in this State that it must affirmatively appear from the abstract of the record proper that the bill of exceptions was filed within the time prescribed by statute; otherwise, nothing is left for the consideration of the appellate court save the record proper. Shemwell v. McKinney, 214 Mo. 692, 114 S.W. 1083; Walsh v. Patterson, 115 S.W. 1027, 135 Mo.App. 345; Southern Mo. & Ark. R. R. Co. v. Wyatt, 122 S.W. 688, 223 Mo. 347; Tucker v. Brown, 123 S.W. 1009; Courtney v. National Annuity Asso., 126 S.W. 987; Stonehill Wine Co. v. Buzzard, et al., 127 S.W. 945, 144 Mo.App. 348; Atkins v. Chicago, etc., R. R. Co., 152 S.W. 1186, 152 Mo.App. 291; State ex rel. Modern Woodmen of Am. v. Broaddus, 143 S.W. 455, 239 Mo. 359; Wendleton v. Kingery, 110 Mo.App. 67; Bradbury v. Kerns, 91 S.W. 437, 115 Mo.App. 99; Hamilton-Brown Shoe Co. v. Williams, 91 Mo.App. 511; Lucas v. Huff, 92 Mo.App. 369. (4) If the bill of exceptions is not filed within the time prescribed by statute, it will not be considered, and the appellate court will only review what appears in the record proper. Tucker v. Brown, 123 S.W. 1009; Doolittle v. Boyd, 135 Mo.App. 616, 116 S.W. 1121; Baird v. Baird, 113 S.W. 216; Phillips v. Webb City, 129 Mo.App. 699; Cartwright v. Liberty Tel. Co., 205 Mo.App. 126; State v. Clark, 119 Mo. 426.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

--Plaintiff, a boy eight years old, sued by next friend to recover for injuries caused by coming in contact with a highly charged wire owned by defendant. The cause was tried before the court and a jury; plaintiff recovered, and defendant appealed.

Plaintiff alleged that the defendant negligently permitted an uninsulated primary electric light wire carrying 2300 volts to pass through the branches of a tree easily accessible and attractive to children, and that plaintiff was injured while up in said tree by coming in contact with said wire. The answer was a general denial, and a plea of contributory negligence.

Defendants city owns and conducts its light plant. Nor for from the plant primary wires carrying 2300 volts each passed through the branches of a sycamore tree from eighteen to twenty-four inches in diameter and about thirty feet high. The wires were about eighteen feet from the ground. A board fence four feet high, stood about two feet north of this three. The tree stood on the right of way of the St. Louis-Southwestern Railway Company, at a place generally used by the public as a passageway, but was not a dedicated street or alley. The first limb was about nine feet from the ground, but below that was the stub of a limb which has been sawed off. Plaintiff lived with his mother about 500 feet north of the tree. On August 10, 1920, the day plaintiff was injured, he and other boys were playing "Chase," and plaintiff climbed upon the board fence, and thence into the tree. He climbed up where the wires were and slipped. "Q. What did you do when you got up there? A. Slipped and started to fall. I then started to grab a limb, I grabbed hold of an electric light wire. No, sir I did not know the wire was up there before I went up there. No, sir, no one ever told me that it was there before I went up. When I slipped and started to fall I thought I was grabbing hold of a limb, I did not know the wire was there until I grabbed hold of it." There was evidence tending to show that the defendant city knew through its officers that the insulation on the portion of the wires passing through this tree had rubbed and whipped off by contact with the branches, and that such had been the condition for a long time prior to plaintiff's injury. Defendant offered no evidence, but stood on its demurrer at the close of plaintiff's case.

Defendant assigns error on the overruling of its demurrer, on the instructions, the admission of evidence, and an alleged excessive verdict.

Before proceeding to the merits we will dispose of plaintiff's contention that there is nothing before us but the record proper. This contention is based on the fact that the abstract of the bill of exceptions before us does not show an exception to the order overruling the motion for a new trial. Absent our construction of Rule 15 plaintiff would seem to have reasonable ground upon which to base his contention. In Walls v. Tinsley, 187 Mo.App. 462, 173 S.W. 19, we liberally construed Rule 15. There it is said: "Under our rules, if the abstract of the record, taken as a whole and including what is shown by the bill of exceptions, shows the timely filing and overruling of the motion for new trial and an exception saved thereto, and it is therein stated that the appeal was duly taken and the bill of exceptions duly filed that is sufficient." Robertson v. Robertson, 178 Mo.App. 478, 163 S.W. 266, by this court is substantially to the same effect. Plaintiff's contention, cannot be sustained for two reasons. First, because the exception mentioned is shown in the abstract of the record proper. This is not a proper place to show such exceptions, but under Rule 15 it is permissible. In the second place plaintiff does not say as a matter fact that the bill of exceptions filed with the clerk of the trial court does not show an exception to the order overruling the motion for a new trial. It was conceded on argument that the bill of exceptions filed with the clerk of the trial court does in fact show such exception. Under our Rule 15 and our construction thereof in the Walls and Robertson Cases, supra, we rule against plaintiff's contention. We might say here that we have, subsequent to the submission of this case, amended Rule 15 by striking out the proviso thereto, and adding a new proviso in the exact language of the second paragraph of Rule 13 of our Supreme Court.

Plaintiff also moved to dismiss because defendant did not file its bill of exceptions in time, and did not serve abstracts and brief in time; but this point was abandoned at the argument.

Defendant contends that its demurred to the evidence should have been sustained, because, as it is claimed, the evidence does not show that the tree was attractive or that it was easy to climb, and that the facts do not justify the inference that defendant city should have anticipated that boys would likely climb this tree and be injured by uninsulated wires. Defendant further contends that the evidence does not tend to show that the officers of the city had or should have knowledge of the condition of this wire: By using the fence this tree was easily climbed. The fence was four feet high. The lowest limb was nine feet from the ground, but below that, how far is not stated, was the stub of a limb. Plaintiff climbed the tree without difficulty. As to the tree being attractive to children there is no direct evidence in the record. It stands among a number of other trees, some of which are over in the yard of Mr. Morris north...