Fussellman v. Wabash Railroad Co.

• Citation: 122 S.W. 1137,139 Mo.App. 198
• Parties: HENRY FUSSELLMAN, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Decision Date: 15 November 1909
• Court: Court of Appeals of Kansas

122 S.W. 1137

139 Mo.App. 198

HENRY FUSSELLMAN, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 15, 1909

Appeal from the Adair County Circuit Court.--Hon. Nat M. Shelton Judge.

AFFIRMED (upon condition).

Judgment affirmed.

J. L Minnis and Higbee & Mills for appellant.

(1) The court erred in refusing to direct a verdict for defendant on plaintiff's claim for personal injuries and in refusing defendant's instructions 2 and 3. Bruce v Railway, 116 S.W. 447; Richmond v. Railway, 133 Mo.App. 463; Crawford v. Stockyards Co., 114 S.W. 1063, top col. 1, by VALLIANT, C. J., and cases cited; 215 Mo. 414. (2) The court erred in giving plaintiff's instruction 1. It purports to cover the whole case and ignores the defense of contributory negligence. Gabriel v. Railway, 112 S.W. 711; 115 S.W. 3, approving Krumm v. Railway, 71 Ark. 590; Harris v. Railroad, 89 Mo. 233; Hastings v. Railroad, 143 F. 260; Bruce v. Railway, 116 S.W. 447; Richmond v. Railway, 133 Mo.App. 463; Erwin v. Railway, 94 Mo.App. 297; Brewing Association v. Talbot, 141 Mo. 683; Monday v. Light Co., 119 S.W. 24, lower half col. 1, 25; Railroad v. Dickson, 143 Ill. 373, 32 N.E. 380; Heumphreus v. Railroad, 65 N.W. 466, and cases cited; Freeman v. Railroad, 131 Mich. 544.

Weatherby & Frank and Campbell & Ellison for respondent.

(1) The filing of the amended motion for new trial was an abandonment of the original motion for new trial and the filing of the second amended motion was also an abandonment of the first amended motion. "The law is that an amendatory or supplemental answer must be complete in itself and when filed, it amounts to an abandonment of any or all previous answers." Kortzendorfer v. City, 52 Mo. 206. It has been held that mere taking leave to amend a pleading amounts to a withdrawal of the original. Roberts v. Company, 26 Mo.App. 98. To the same effect Walker v. Railroad, 193 Mo. 472. The filing of the amended and second amended motion for new trial was an abandonment of the original motion. Neither of the amended motions are preserved in the bill of exceptions and matter of error cannot be reviewed. It is the unexpected rather than the expected that happens in the great majority cases of negligence." 1 Joyce on Damages, sec. 90. "The negligence being established defendant is liable for all the consequences directly resulting therefrom, though the particular injury might not have been anticipated. In case the negligence is admitted or otherwise proved and the injurious consequences are immediate and flow directly from the negligent act, the person guilty of the act will not be excused for the reason that the particular consequences were unusual and could not ordinarily have been foreseen." Graney v. Railroad, 140 Mo. 98.

OPINION

BROADDUS, P. J.

This is a suit for damages for injuries plaintiff claims he sustained to his person, and for injury to certain personal property by reason of the alleged negligence of defendant.

In January, 1907, plaintiff shipped some household goods, farming utensils, baled hay, and two horses and one mule over defendant's railroad from Kansas City to Kirksville. The property was all shipped in one car, the horses and mule being separated from the other property by a temporary partition.

The contract made it the duty of plaintiff to look after and care for the stock, and to look after the fastening of the door to the car, and for this purpose he was furnished with a key to the door. The plaintiff traveled in the caboose of the train, which when it reached Moberly en route, about six o'clock p. m., the car containing his property was switched onto a side track.

Plaintiff testified that after the car was switched he asked some one of defendant's employees when his car would leave and was informed that it would soon leave, that afterwards he went into the car to see about his animals and gave them some feed; that he remained in the car all night sitting upon some of his goods; that during the night but at what time he could not state the defendant's employees in switching caused some other car to strike his car with such force and violence that one of his horses was thrown through the partition and over a bedstead, demolishing the bedstead and injuring the horse, besides doing other damage; that he was also thrown down and rendered unconscious; that after he arrived at Kirksville he called the attention of the station agent to the injured condition of the horse; that afterwards he filed a claim against the company for damages to the horse but at that time made no claim for injury to his own person; and that he was unable to ascertain the extent of the injury to his horse until several months thereafter when it became certain that it was permanent.

Plaintiff recovered damages for injury to his horse in the sum of $ 50, and $ 1,000 for injuries to his person.

The defendant in due time filed a motion for a new trial and in arrest of judgment; but after the expiration of four days, filed an amended motion, and later filed a second amended motion, neither of which amendments are set forth in the abstract; but the original motion is.

Respondent contends that the filing of the first amended motion was an abandonment of the original motion and the filing of the second amended motion was an abandonment of the first amended motion. The rule in such instances is that the filing of an amendment to a pleading or motion amounts to an abandonment of the original. [Kortzendorfer v. Kansas City, 52 Mo. 204, 206; Roberts v. Company, 26 Mo.App. 92, 98; Walker v. Railroad, 193 Mo. 453, 472.] In a recent decision of this court, however, it is held that, the statute requiring motions for a new trial to be filed within four days is mandatory, and that no motion for a new trial nor an amendment thereto can be properly filed after the expiration of said time, and where a motion is filed within the proper time, an amendment filed after that time is a nullity, and as such has no effect upon the original motion. [Brinton v. Thomas, 119 S.W. 1016.] Under the authority of this case, and others, it is plain that as the original motion is contained in the abstract, the whole case is before this court as made by the bill of exceptions and record proper. [Mirrielies v. Wabash Ry. Co., 163 Mo. 470; State v. Brooks, 92 Mo. 542; Bank v. Bennett, 138 Mo. 494, 40 S.W. 97.]

Appellant claims that there is no evidence, so far as the issue relates to the injuries respondent asserts that he received to his person, that defendant's employees had any knowledge that he was in the box car at the time; and that his injuries was the result of his own negligence.

On the contrary respondent insists that as it was made his duty "to attend to and care for his stock therefore he had the right to go into the car at any time, and that defendant had...