Berkson v. Kansas City Cable Ry. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRobinson
Citation144 Mo. 211,45 S.W. 1119
Decision Date24 May 1898
PartiesBERKSON et al. v. KANSAS CITY CABLE RY. CO. et al.
45 S.W. 1119
144 Mo. 211
BERKSON et al.
v.
KANSAS CITY CABLE RY. CO. et al.
Supreme Court of Missouri, Division No. 1.
May 24, 1898.

STREET RAILROADS — DAMAGES TO ABUTTING OWNERS — TRIAL — IRREGULAR VERDICT — APPEAL — REVIEW — AGENCY — QUESTIONS FOR JURY — INSTRUCTIONS — CONCLUSIVENESS OF VERDICT.

1. In an action for tort against several defendants whose liability is joint and several, it is not reversible error for the jury to find against one defendant, and for the verdict to be silent as to the others, where the court entered judgment in favor of the others, and no complaint was made of the irregularity on the motion for new trial.

2. In an action for damages for injuries to plaintiff's property from change of street grade by a street railway, although the contract for the work was made in the name of one corporation, where the evidence tended to prove that it was so made at the instance of defendant for its benefit, and the work was done under its direction, paid for with its funds, and the fruits were exclusively enjoyed by it, defendant is liable for the damages resulting therefrom.

3. Where a person asks the judgment of a jury on a given issue, he will not afterwards be heard to challenge the verdict on the ground

[45 S.W. 1120]

that the issue was improperly submitted to them.

4. Where the facts out of which agency may be deduced are in dispute, whether the agency existed or not is a question for the jury.

5. Instructing the jury to disregard general benefits accruing to plaintiff's property in common with other property in the same community, instead of neighborhood or vicinity, could not mislead the jury unfavorably to defendant in an action against the street railroad for changing the grade of a street.

6. A judgment will not be reversed for obscure and inaccurate expressions in an instruction not substantially affecting the merits of the action.

7. The determination of a jury as to the amount of damages awarded, if within the range of the testimony offered, is final.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Action by Isaac Berkson and Thomas J. Seehorn, as administrator of the estate of William J. McGonegal, deceased, against the Kansas City Cable-Railway Company and others. From a judgment for plaintiffs against the Kansas City Cable-Railway Company, all defendants appeal. Affirmed.

Karnes, Holmes & Krauthoff, for appellants. Scarritt, Griffith & Jones and Wollman & New, for respondents.

ROBINSON, J.


This action was begun to recover damages to abutting private property, charged to have resulted from a change of grade of Independence avenue, just east of the eastern limits of Kansas City. The action was against the defendants, the Kansas City Cable-Railway Company, the Kansas City & Independence Railway Company, and James Lillis. The case was tried by a jury, under instructions from the court, resulting in the following verdict: "We, the jury, find for plaintiffs, and against the defendant the Kansas City Cable-Railway Company, and do assess their damages at $3,500. Oscar Thompson, Foreman," — on which a judgment was duly entered against the Kansas City Cable-Railway Company, and in favor of the other two defendants. After unsuccessful motions for a new trial and in arrest of judgment, the defendants have prosecuted their appeal to this court. Just what grievance has been done the defendants Lillis and the Kansas City & Independence Railway Company by the rendition of a judgment in their favor has not been very definitely suggested. Usually, such judgments meet the defendants' highest approval, and we are unable to see now, by this appeal, how their condition can be improved, or why they should be heard to complain. Four assignments of error have been made and argued by the counsel for appellants in the briefs filed herein, as follows: (1) The damages are excessive; (2) plaintiff's instructions Nos. 1 and 2 were erroneous; (3) there was no evidence to authorize a verdict against the Kansas City Cable-Railway Company; (4) the verdict is erroneous, in that it did not find all the issues. These we will notice in the inverse order of their presentation to us.

1. Was the failure of the verdict to find expressly for or against the defendants Lillis or the Kansas City & Independence Railway Company reversible error, in view of the action of the court thereon, and of the nonaction of the defendant the Kansas City Cable-Car Company at the time? Judgment was entered by the trial court in due form for the plaintiff, against the defendant the Kansas City Cable-Car Company, of whom alone the jury found guilty as charged in plaintiff's petition, and in favor of the other defendants, Lillis and the Kansas City & Independence Railway Company, against whom no verdict was expressly rendered. The last two defendants did not complain of the court's action in this particular, in their motion for a new trial (and really no grievance was done to either of them by the judgment); neither did the defendant the Kansas City Cable-Car Company, in its motions for a new trial or in arrest of judgment, call to the attention of the trial court the irregularity of the verdict, or the error of the judgment entered thereon, if error it be considered. Only such errors as are fatal to the merits of an action, although appearing upon the face of the record, will be considered on appeal. State v. Scott, 104 Mo. 31, 15 S. W. 987, and 17 S. W. 11, and cases cited. In fact, the statute expressly inhibits the reversal of judgments...

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37 practice notes
  • Neal v. Curtis Co. Mfg. Co., No. 29263.
    • United States
    • Missouri Supreme Court
    • July 28, 1931
    ...sued or remaining in the case. [Asher v. City of Independence, 177 Mo. App. 1; Rogers v. Rogers, 265 Mo. 200, 209; Berkson v. Railway, 144 Mo. 211; Allen v. Forsythe, 160 Mo. App. l.c. 269; Flenner v. Southwest Missouri R. Co., 290 S.W. If one person is sued for an injury caused by his negl......
  • Stith v. Newberry Co., No. 31563.
    • United States
    • Missouri Supreme Court
    • February 8, 1935
    ...of the proceeding, dismiss as to one or more of them without affecting the merits of the action as to the others." [Berkson v. Railroad, 144 Mo. 211, 45 S.W. 1119; Rogers v. Rogers, 265 Mo. 200, 209, 177 S.W. 382.] If, therefore, the record here sufficiently, though defectively, shows a non......
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • April 28, 1978
    ...v. Magary, 373 S.W.2d 16, 22 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); Berkson v. Kansas City Cable Ry. Co., 144 Mo. 211, 217, 45 S.W. 1119, 1120 Despite the early common law "rule", we do permit indemnity to some extent between non-contractual concurrent tortfeas......
  • Markley v. Kansas City S. Ry. Co., No. 33325.
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1936
    ...Railroad Co. v. So. Ry. News Co., 151 Mo. 373, 52 S.W. 205; Heman Const. Co. v. St. Louis, 256 Mo. 332, 165 S.W. 1032; Berkson v. Ry. Co., 144 Mo. 211, 45 S.W. 1119; Flenner v. Railroad Co., 221 Mo. App. 160, 290 S.W. 78; Secs. 3268, 3309, R.S. 1929; 60 C.J., p. 696, sec. 3, pp. 697-698, se......
  • Request a trial to view additional results
37 cases
  • Neal v. Curtis Co. Mfg. Co., No. 29263.
    • United States
    • Missouri Supreme Court
    • July 28, 1931
    ...sued or remaining in the case. [Asher v. City of Independence, 177 Mo. App. 1; Rogers v. Rogers, 265 Mo. 200, 209; Berkson v. Railway, 144 Mo. 211; Allen v. Forsythe, 160 Mo. App. l.c. 269; Flenner v. Southwest Missouri R. Co., 290 S.W. If one person is sued for an injury caused by his negl......
  • Stith v. Newberry Co., No. 31563.
    • United States
    • Missouri Supreme Court
    • February 8, 1935
    ...of the proceeding, dismiss as to one or more of them without affecting the merits of the action as to the others." [Berkson v. Railroad, 144 Mo. 211, 45 S.W. 1119; Rogers v. Rogers, 265 Mo. 200, 209, 177 S.W. 382.] If, therefore, the record here sufficiently, though defectively, shows a non......
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • April 28, 1978
    ...v. Magary, 373 S.W.2d 16, 22 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); Berkson v. Kansas City Cable Ry. Co., 144 Mo. 211, 217, 45 S.W. 1119, 1120 Despite the early common law "rule", we do permit indemnity to some extent between non-contractual concurrent tortfeas......
  • Markley v. Kansas City S. Ry. Co., No. 33325.
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1936
    ...Railroad Co. v. So. Ry. News Co., 151 Mo. 373, 52 S.W. 205; Heman Const. Co. v. St. Louis, 256 Mo. 332, 165 S.W. 1032; Berkson v. Ry. Co., 144 Mo. 211, 45 S.W. 1119; Flenner v. Railroad Co., 221 Mo. App. 160, 290 S.W. 78; Secs. 3268, 3309, R.S. 1929; 60 C.J., p. 696, sec. 3, pp. 697-698, se......
  • Request a trial to view additional results

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