Bolles v. Kansas City Southern Ry. Co.

• Decision Date: 13 May 1912
• Citation: 147 S.W. 497
• Parties: BOLLES v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

147 S.W. 497

BOLLES v. KANSAS CITY SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

May 13, 1912.

1. APPEAL AND ERROR (§ 1053) — HARMLESS ERROR — EVIDENCE.

An instruction on the measure of damages not including loss of earnings cures any error in the admission of evidence relative to plaintiff's earnings.

2. APPEAL AND ERROR (§ 1099) — REVIEW — LAW OF THE CASE.

A judgment will not be reversed for an alleged error in an instruction, where such instruction was practically approved by the court on a former appeal.

3. TRIAL (§ 133) — REMARKS BY COUNSEL — CURE.

A reference by counsel on the second trial of a case to the former verdict was cured when on objection the court stated that the verdict on the former trial had nothing to do with the case.

4. TRIAL (§ 132) — REMARKS BY COUNSEL — CURE.

Remarks by plaintiff's counsel in response to a reference by defendant's counsel to plaintiff's absence from the trial that he would have been there if defendant, a railroad company, had furnished him transportation, as it did its own witnesses, which was outside of the evidence, were not prejudicial, where the jury was instructed to disregard such remarks, and plaintiff's counsel withdrew them.

Error to Circuit Court, Cass County; N. M. Bradley, Judge.

Action by John S. Bolles against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Cyrus Crane, of Kansas City, and H. C. Clark, of Nevada, Mo., for plaintiff in error. Pross T. Cross, of Lathrop, for defendant in error.

ELLISON, J.

This action is for damages for being wrongfully ejected from one of defendant's trains upon which plaintiff had entered as a passenger from Lake Charles, La., to Kansas City, Mo. The judgment in the trial court was for the plaintiff. The case was in this court on another appeal, when we remanded it for a new trial on account of error in an instruction. 134 Mo. App. 696, 115 S. W. 459. We refer to that case for a full report of the facts, as it was retried on substantially the same evidence and in conformity to the views of the court there expressed. At the last trial, as at the first, plaintiff showed that he and a companion had been in the state of Louisiana hunting, and bought tickets at Lake Charles over defendant's road to Kansas City; that immediately on their getting aboard the train the conductor pounced upon plaintiff for his ticket, and as he answered that he had it, and began looking in his pocketbook for it, the conductor cursed him, told him he did not have any ticket, was a damned hobo, and, with plaintiff still protesting he could find the ticket if given time, he pushed him off the slowly moving train, thereby inflicting serious injury. It was shown in the last trial, as at the first, that plaintiff and his companion walked back to the station, where plaintiff stated to the agent he had been put off, and that the agent had not given him his tickets. The agent told him to look in his pocketbook, and, on looking again, he found both his and his companion's tickets in a part of the pocketbook he had not before, in his confusion, thought to look into. Both took the next train, a few hours afterwards, and came on to Kansas City.

The first objection is to evidence allowed in plaintiff's behalf that he had been a house painter by trade and earned $4 a day. If this was error, as claimed, it was rendered harmless by the instruction on the measure of damages, which did not include such loss of earnings. We think unquestionably no such harm was done to defendant as to justify a reversal. But, aside...