Booth v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 25 February 1909
• Citation: 217 Mo. 710,117 S.W. 1094
• Court: Missouri Supreme Court
• Parties: BOOTH v. ST. LOUIS, I. M. & S. RY. CO.

117 S.W. 1094

217 Mo. 710

BOOTH v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

Rehearing Denied March 31, 1909.

1. APPEAL AND ERROR (§ 581)—ABSTRACT— CONTENTS—ORDER ALLOWING APPEAL.

Rev. St. 1899, § 813 (Ann. St. 1906, p. 783), requiring plaintiff to file a transcript of the record, or, in lieu thereof, a certified copy of the record entry of the judgment, together with the order granting the appeal, and to thereafter file printed abstracts of the entire record, was designed to facilitate the business of appellate courts, by obviating the necessity of searching the transcript for essential points of the record, and its spirit and purpose must control, so that where the appeal was on a short transcript containing a certified copy of the judgment and of

the order granting the appeal, made during the term, that the abstract did not contain the order granting the appeal was not ground for dismissal, though the statute, in terms, applied to short as well as long transcripts.

2. APPEAL AND ERROR (§ 528)—RECORD—CONTENTS—MOTION FOR NEW TRIAL.

A motion for a new trial is not a part of the record proper.

3. APPEAL AND ERROR (§ 706)—RECORD—BILL OF EXCEPTIONS — CONTENTS — MOTION FOR NEW TRIAL.

Where the bill of exceptions recited that appellant filed his "motion for new trial in said cause as follows," referring to a page of the record where it was set out in full, the appeal would not be dismissed on the ground that the bill of exceptions did not contain the motion for new trial, even though the motion was not properly a part of the record proper.

4. MASTER AND SERVANT (§ 102)—MASTER'S DUTY—SAFE PLACE OF WORK.

A master must furnish servants reasonably safe implements and a reasonably safe place to work, and is liable for injuries caused by his failure to do so.

5. RAILROADS (§ 259) — OPERATION — LEASE— COMPANIES LIABLE FOR INJURIES.

Public service corporations, such as railroads, cannot lease property without legislative consent, and an attempt to do so is a mere nullity, and a lessor railroad will be held liable for the torts of the lessee in operating the road, exactly as though the lease had not been made.

6. APPEAL AND ERROR (§ 907) — PRESUMPTIONS—FACTS NOT SHOWN BY RECORD.

Where, in an action for injuries caused by being struck by a trolley wire strung over defendant's road which the railroad for which plaintiff was employed was using at the time, where plaintiff did not show by what authority his road was using defendant's road and objected to evidence by defendant to show that fact, it cannot be assumed that it was used illegally or under conditions that rendered defendant liable for the torts of the user.

7. RAILROADS (§ 259)—OPERATION—COMPANIES LIABLE—COMPANIES PERMITTING USE OF ROAD BY OTHERS.

If an employé of another road was injured by his employer's negligence while using a part of defendant's road, defendant would not be liable for such injuries, where it did not appear by what authority the other company was using its track, or whether it was using it under an unauthorized lease from defendant.

8. RAILROADS (§ 282)—OPERATION—USE BY OTHER COMPANIES—INJURIES—NEGLIGENCE —OBSTRUCTIONS.

In an action for injuries by being struck by a trolley wire strung over defendant's railroad while plaintiff's road was using defendant's track, where the case was tried on the theory that the wire was suspended so low as to endanger plaintiff while passing under it on top of a car, it could not be said as a matter of law that defendant was negligent because the wire was not 22 feet high, at which height Rev. St. 1899, § 1179 (Ann. St. 1906, p. 995), requires street railways to construct its trolley wires above a railroad track which it crosses, even if that statute was applicable, as the wire might have been reasonably high, though less than 22 feet.

9. RAILROADS (§ 282)—OPERATION—USE OF ROAD BY OTHERS—NEGLIGENCE.

That a trolley wire strung over defendant's railroad was only 19 feet 5 inches above the track did not, as a matter of law, require defendant to warn employés of another road, which it permitted to use its track, to look out for danger.

10. RAILROADS (§ 282)—OPERATION—CONTROL OF RIGHT OF WAY.

A railroad has control of its right of way through country districts, and can prevent the erection of structures dangerous to the operation of its trains or remove such structures; but it does not have exclusive control of its right of way through a public street, being there only by permission, and its rights and those of a street railway whose track it crossed in a public street would be mutual, so that the railroad could not require the street railway to maintain its trolley wire at a certain height for the safe operation of the railroad, its only remedy being an appeal to the city authorities, and hence it could not be said as a matter of law that the railroad negligently permitted the trolley wire to be strung too low so as to make it liable for injuries thereby to an employé of another road using its track.

11. RAILROADS (§ 282)—INJURIES TO LICENSEE—PLEADING—ISSUES.

In an action for injuries by being struck by a trolley wire strung over defendant's railroad track which plaintiff's employer was using at the time, where the petition only alleged that defendant permitted the street railroad to negligently string the wires, there was no issue as to whether defendant itself erected the wires.

Lamm, P. J., and Woodson, J., dissenting in part.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by W. E. Booth against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy, D. C. Chastain, Edw. J. White, and Henry G. Herbel, for appellant. R. A. Mooneyham, Hugh Dabbs, and R. M. Sheppard (A. L. McCawley, Lee Shepherd, Herbert Crane, and Harry Phelps, of counsel), for respondent.

VALLIANT, J.

This suit was begun against the St. Louis, Iron Mountain & Southern Railway Company and the Missouri Pacific Railway Company for damages for personal injuries which plaintiff in his petition alleges he suffered through the negligence of the two defendants. When the plaintiff's testimony was concluded, the court gave the jury an instruction to the effect that the plaintiff could not recover against the Missouri Pacific Company, but refused to so instruct as to the Iron Mountain Company, therefore the plaintiff dismissed his suit as to the Missouri Pacific, and the trial went on against the Iron Mountain and resulted in a verdict for the plaintiff for $10,000, from which the Iron Mountain Company appealed.

1. Respondent has filed a motion to dismiss the appeal, alleging as a ground therefor that the circuit court did not make an order granting the appeal. The cause comes here on a short transcript; that is, a duly certified copy of the judgment and of the order of the circuit court granting the appeal, which order was made during the term at which the judgment was rendered. How, then, could we say that there was no order allowing the appeal, while we have before us a duly certified copy of the order itself? But it is said the abstract does not show it. Suppose that is so; would it not be sacrificing justice to give section 813, Rev. St. 1899 (Ann. St. 1906, p. 783), and the rules of court made in obedience thereto, such an interpretation as would authorize a dismissal of the appeal under these circumstances? That statute was designed to aid in expediting the business of this and the other appellate courts, imposing on the appellant the duty of presenting in brief abstract form the essential points of the record, so that the court could seize the points without consuming time in going through the long transcript to find them for itself. We have often said, and we adhere to it, that the time of the appellate courts is too valuable to be consumed in labor that can be performed by the attorneys in the case, and that we will not search the transcript for what the abstract ought to show. It is true the letter of the statute applies as well to a short as it does to a long transcript, yet its reason and spirit must be looked to in its application. We have held in two recent cases that when the cause is here in the short form—that is, a certified copy of the judgment and of the order granting the appeal—we would not dismiss the appeal because the abstract did not show the order. Pennowfsky v. Coerver, 205 Mo. 136, 103 S. W. 542; Coleman v. Roberts (Mo.) 114 S. W. 39.

It is also alleged as a ground for the motion that the abstract does not show that the motion for a new trial was filed during the term at which the judgment was rendered. Respondent is mistaken in point of fact in that particular. The abstract of the record proper shows that the motion was filed within four days after the return of the verdict and during the same term at which the judgment was rendered, that the motion was overruled, and that thereafter the affidavit for appeal was filed and the appeal granted during the same term.

Respondent in his brief says that the motion for a new trial does not appear in the bill of exceptions. That is also a misunderstanding of the abstract. The bill of exceptions purports to set out all the proceedings in pais, and, after setting out the evidence, the instructions, and the verdict, it proceeds: "Thereupon, on the same day, to wit, December 19, 1905, the defendant filed its motion for a new trial in said cause, as follows: (Printed on page 17 of this record.)" Turning to page 17 of the printed abstract, we find the motion in full. But the counsel say that on page 17 the motion appears to have been copied into the record proper, where it had no lawful place. It is true the motion had no lawful place in the record proper, and if it was not in fact set out or called for in the bill of exceptions it would avail the appellant nothing. But the abstract of the bill of exceptions...