Connelly v. Illinois Cent. R. Co.

• Citation: 183 Mo. App. 408,166 S.W. 1077
• Decision Date: 05 May 1914
• Docket Number: No. 14139.,14139.
• Parties: CONNELLY v. ILLINOIS CENT. R. CO.
• Court: Court of Appeal of Missouri (US)

166 S.W. 1077

183 Mo. A. 408

CONNELLY v. ILLINOIS CENT. R. CO.

No. 14139.

St. Louis Court of Appeals. Missouri.

May 5, 1914.

1. CARRIERS (§ 134)—ACTIONS FOR LOSS OR INJURY TO GOODS—SUFFICIENCY OF EVIDENCE.

In an action against a railroad company for injury to goods, evidence held to sustain a finding that the goods were damaged while in the possession and under the control of the defendant.

2. EVIDENCE (§ 539½)—OPINION EVIDENCE.

In an action against a railroad for damages to furniture shipped, the court properly permitted experienced railroad men to testify that in their opinion the furniture could have been braced by the railroad, and the loss would not have occurred.

3. APPEAL AND ERROR (§§ 242, 261)—PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW—NECESSITY OF RULING AND EXCEPTION.

An assignment of error as to argument of counsel cannot be considered, in the absence of any ruling of the court or exceptions saved to the action or nonaction of the court.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Frank L. Connelly against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant. H. A. Loevy, of St. Louis, for respondent.

REYNOLDS, P. J.

This is the fourth appearance of this case in our court on appeal. Its history and the various incidents connected with it will be found reported, first, under the caption Connelly, Respondent, v. Illinois Central Railroad Co., Appellant, Southern Railway Company and Mobile & Ohio Railroad Company, Defendants, 120 Mo. App. 652, 97 S. W. 616, the judgment then rendered against the Illinois Central Railroad Company being reversed and the cause remanded. Its second appearance is under the title Connelly, Appellant, v. Illinois Central Railroad Company, Respondent, 133 Mo. App. 310, 113 S. W. 233. The plaintiff having appealed from a judgment against it and in favor of the railroad company, that judgment was reversed and the cause again remanded. Its third appearance is under the title of Connelly, Respondent, v. Illinois Central Railroad Company et al., Defendants, Southern Railway Company, Appellant, and it will be found in 169 Mo. App. 272, 153 S. W. 79, coming before us on an appeal by the Southern Railway Company from a judgment against it and in favor of the plaintiff. That judgment was reversed and the cause again remanded. On its return to the circuit court it was tried against the Illinois Central Railroad Company alone and resulted in a verdict against it, judgment being entered up in favor of the other two defendants, who had before then been discharged from the case. It is from this last judgment against it that the Illinois Central Railroad Company has brought the present appeal.

The case in its several trials proceeded upon the theory that each of the carriers was liable only for loss occurring on its own line and while the goods were in the possession of that line, and was founded on the liability of each as carriers at common law. See Connelly v. Illinois Central Railroad Company, 133 Mo. App. 310, loc. cit. 313, 113 S. W. 233. In the case now before us the other two companies having disappeared from the case, right of recovery is sought against the Illinois Central alone. That right must turn upon the question as to whether the damage to the goods, and as to the fact of damage there is no controversy whatever, occurred while the goods were in charge of the Illinois Central Railroad Company, in transit over its line from Jackson to Winona, Mississippi, or before delivery by it to the Southern Railway Company, the intermediate carrier between the Illinois Central, the initial carrier, and the Mobile & Ohio Railroad Company, the final carrier, at Winona.

The law applicable to the case is so clearly stated in 133 Mo. App. loc. cit. 316, 113 S. W. 235, supra, that we do not consider it necessary to enlarge on it to any extent. Referring to...