Davis v. Thompson

• Decision Date: 18 February 1908
• Citation: 209 Mo. 192,107 S.W. 1067
• Parties: DAVIS v. THOMPSON et al.
• Court: Missouri Supreme Court

107 S.W. 1067

209 Mo. 192

DAVIS v. THOMPSON et al.

Supreme Court of Missouri. Division No. 2.

February 18, 1908.

COURTS — SUPREME COURT JURISDICTION — CONSTITUTIONAL QUESTION.

The fact that a motion for a new trial assigned as grounds that the court erred in taking the case from the jury and thereby depriving the moving party of the right to have his case submitted to the jury, in violation of Const. art. 2, § 28 [Ann. St. 1906, p. 162], and that the court erred in giving an instruction for a verdict in favor of the opposite party, thereby depriving the moving party of his property and rights without due process of law, in violation of Const. art. 2, § 30 [Ann. St. 1906, p. 166], did not raise a constitutional question so as to confer jurisdiction on the Supreme Court.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Hettie Davis against Benjamin Thompson and another. From a judgment in favor of defendants, plaintiff appeals. Cause ordered transferred to the Kansas City of Appeals.

Hall & Hall, for appellant. J. W. Peery and Harber & Knight, for respondents.

BURGESS, J.

This is a suit for damages for injuries sustained through the alleged negligence of the defendants. The petition alleges, in substance, that the defendants, in person and by their agents and employés, on the 10th day of May, 1904, carelessly and negligently and unlawfully placed a large roll or bundle of fencing wire in a public highway, described in the petition, and near the traveled portion of said highway, and carelessly and negligently and unnecessarily permitted the same to remain therein; that said roll or bundle of wire so placed in said highway was calculated to frighten reasonably safe and quiet horses and teams traveling along said highway; that the defendants and their agents and employés well knew the dangerous character of said wire when so left in said highway; and that it was likely to frighten reasonably safe and quiet horses and teams, etc. The petition then alleges that while plaintiff, on the date aforesaid, was passing along said highway, the team attached to the conveyance in which she was riding became frightened at said wire and ran away, and that plaintiff was thrown out and injured, for which injuries she asked judgment for damages in the sum of $3,000. The answer to the petition was a general denial. The evidence showed that defendant Porter A. Thompson, a resident of the city of St. Joseph, owned a large farm near Brimson, Grundy county, which was occupied and managed by his codefendant Benjamin Thompson, and that the public road in question ran along a part of said farm. On the day in question it became necessary in their farming operations to remove the wire from the fence on their land along the side of this highway to another part of the farm. The wire was attached to the posts on the outside, or side next the highway, and the usual and ordinary method of performing such work was to detach the wire from the posts and roll it up in convenient bundles along the outside of the fence. The farm hands of defendants commenced this work in the morning, finished it about noon, and went to dinner without removing the bundles of wire up to that time. Plaintiff was a maiden lady, about 69 years of age, living with her brother-in-law, Joseph Marshall, about four miles south of Brimson. On the morning in question she, in company with three other women, drove in a spring wagon from Joseph Marshall's to the home of Oscar Hughes, about a mile north of Brimson, the vehicle being drawn by a team of old farm horses owned and used by Marshall for 8 or 10 years. As they passed by the place on the road where the men employed by defendants were taking the wire off the fence and rolling it up the team shied at a bundle of wire lying four or five feet from the traveled track, but did not attempt to run away at that time. The women got to the house of Mr. Hughes about 9 o'clock and stayed there till about 2 o'clock, when they started back towards home. Just before the team reached the place where the wire lay, frightened by the bundle of...