Landers v. Quincy, O. & K. C. R. Co.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBroaddus
Citation114 S.W. 543,134 Mo. App. 80
Decision Date07 December 1908
PartiesLANDERS v. QUINCY, O. & K. C. R. CO.
114 S.W. 543
134 Mo. App. 80
LANDERS
v.
QUINCY, O. & K. C. R. CO.
Kansas City Court of Appeals. Missouri.
December 7, 1908.

1. PLEADING (§ 369) — ELECTION BETWEEN COUNTS—NECESSITY.

A plaintiff may state his cause of action in several consistent counts, and he will not be required to elect on which he will proceed to trial.

2. EVIDENCE (§ 472) — OPINION EVIDENCE — ADMISSIBILITY.

Where, in an action by a servant for injuries caused by the derailment of a hand car on which he was riding, it was alleged that the derailment was caused by an iron bar being negligently kicked off the car onto the tracks, permitting a witness to state in his opinion, as a fact, that the bar had been kicked off, was error, as allowing the witness to usurp the province of the jury.

3. MASTER AND SERVANT (§ 259) — INJURIES TO SERVANT—ACTION—PLEADING.

An allegation in the petition in an action by a servant for injuries caused by the derailment of a hand car on which he was riding that one or more of defendant's employés while engaged in operating defendant's railroad in propelling the hand car negligently struck, kicked, or pushed an iron bar off of and in front of the car, derailing it, does not charge that the bar was kicked or shoved off intentionally, but that it was the result of carelessness on the part of the workmen.

4. MASTER AND SERVANT (§ 202) — INJURIES TO SERVANT—TORTIOUS ACTIONS OF FELLOW SERVANT—LIABILITY OF MASTER.

A master is liable for the tortious acts of a servant committed in the course of the employment.

5. MASTER AND SERVANT (§ 259) — INJURIES TO SERVANT—ACTION—PLEADING.

An allegation in the petition in an action by a servant for injuries caused by the derailment of a hand car on which he was riding that one or more of defendant's employés while engaged in operating defendant's railroad in propelling the hand car negligently struck, kicked, or pushed an iron bar off of and in front of the car, derailing it, sufficiently states that the act was done while the servant was in the performance of his duty.

6. TRIAL (§ 29)—REMARKS OF COURT.

Where objection was made to the testimony of a physician as being a privileged communication within Rev. St. 1899, § 4659 (Ann. St. 1906, p. 2539), the action of the court on sustaining the objection, in announcing that counsel could examine the physician as to matters disconnected with the relation of physician and patient, was not error.

7. MASTER AND SERVANT (§ 270) — INJURIES TO SERVANT—ACTION—EVIDENCE.

In an action by a servant for injuries caused by the derailment of a hand car on which he was riding alleged to have been due to the fact that it was dilapidated and out of repair, evidence of the condition of such car and of repairs made on it before and after the accident is inadmissible.

8. EVIDENCE (§ 317)—ADMISSIBILITY—HEARSAY.

Evidence as to what another told witness of a conversation he had with the roadmaster of defendant in reference to the hand car's condition was inadmissible as hearsay.

9. MASTER AND SERVANT (§ 270) — INJURIES TO SERVANT—NOTICE OF DEFECTS—EVIDENCE.

Testimony of a witness as to a conversation he heard between a foreman and the roadmaster as to the hand car's condition was admissible as showing notice to defendant of the defects prior to the injury.

10. WITNESSES (§ 361) — CREDIBILITY — EVIDENCE TO SUSTAIN.

Counsel for plaintiff interrupted the answer of a witness to a question on cross-examination with another question, whereupon defendant's counsel objected and asked that witness be allowed to answer in full, at which time the court said: "The witness has shown that he needs a careful cross-examination." On exception being taken, the court replied: "You can except all you want to. I am not caring for your appeals." Held that, as the court's remarks tended to discredit the witness, it was error to exclude evidence as to his reputation for truth and veracity.

11. TRIAL (§ 29) — CONDUCT — REMARKS OF JUDGE.

The language of the court was calculated to influence the jury, and was ground for reversal.

12. APPEAL AND ERROR (§ 1001) — REVIEW — VERDICT—QUESTION OF FACT.

Where there is evidence to support the verdict, it will not be disturbed on appeal.

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

Action by Bert Landers against the Quincy, Omaha & Kansas City Railroad Company.

[114 S.W. 544]

From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. G. Trimble and Hall & Hall, for appellant. A. G. Knight, E. M. Harber, and E. R. Sheetz, for respondent.

BROADDUS, P. J.


This is a suit for damages for an injury to plaintiff alleged to have been the result of defendant's negligence. While plaintiff and other employés of defendant engaged in repairing its tracks were riding on one of the tracks in a hand car near Coffeysburg, in Davies county, at the rate of speed of from five to eight miles an hour, the hand car became derailed, and plaintiff received severe injuries. This...

To continue reading

Request your trial
18 practice notes
  • Dobson v. St. L.-S.F. Ry. Co., No. 4321.
    • United States
    • Court of Appeal of Missouri (US)
    • September 28, 1928
    ...the province of the jury. McKerall v. Railroad, 257 S.W. 166, l.c. 168; Marshall v. Taylor, 168 Mo. App. 240; Landers v. Railroad, 134 Mo. App. 80, l.c. 87; Griffith v. Casualty Co., 299 Mo. 426, 253 S.W. 1043-1047; Gricus v. Railways Co., 291 Mo. 582, 237 S.W. 763, l.c. 764; Clear v. Van B......
  • Grubbs v. Public Service Co., No. 29333.
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1931
    ...witnesses, and in asking leading and suggestive questions. 38 Cyc. 1316; Artz v. Robertson, 50 Ill. App. 27; Lauders v. Railroad, 134 Mo. App. 80; Edwards v. Cedar Rapids, 138 Iowa, 421, 116 N.W. 323; McGinnis v. Railroad, 21 Mo. App. 413; State v. Turner, 125 Mo. App. 21; Dreyfus v. Railro......
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...demanded of him. Wright v. Richmond, 21 Mo. App. 76; Rose v. Kansas City, 125 Mo. App. 231, 102 S.W. 578; Landers v. Railroad, 134 Mo. App. 80, 114 S.W. 543; Reeves v. Lutz, 191 Mo. App. 550, 177 S.W. 764; Jackman v. Railroad, 187 S.W. 786; McElwain v. Dunham, 221 S.W. 773; Rooker v. Railro......
  • Sullivan v. Union Electric Light & Power Co., No. 30356.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...App. 372; Thomas v. Keyes, 214 Mo. 487; Heberling v. City, 133 Mo. App. 544; Gallagher v. City, 133 Mo. App. 557; Landers v. Railroad, 134 Mo. App. 80; Jopson v. Shaw, 211 Mo. App. 336; Unrein v. Oklahoma, 295 Mo. 353, 244 S.W. 924; Martin v. Kansas City, 224 S.W. 141; Disbrow v. Peoples Co......
  • Request a trial to view additional results
18 cases
  • Dobson v. St. L.-S.F. Ry. Co., No. 4321.
    • United States
    • Court of Appeal of Missouri (US)
    • September 28, 1928
    ...the province of the jury. McKerall v. Railroad, 257 S.W. 166, l.c. 168; Marshall v. Taylor, 168 Mo. App. 240; Landers v. Railroad, 134 Mo. App. 80, l.c. 87; Griffith v. Casualty Co., 299 Mo. 426, 253 S.W. 1043-1047; Gricus v. Railways Co., 291 Mo. 582, 237 S.W. 763, l.c. 764; Clear v. Van B......
  • Grubbs v. Public Service Co., No. 29333.
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1931
    ...witnesses, and in asking leading and suggestive questions. 38 Cyc. 1316; Artz v. Robertson, 50 Ill. App. 27; Lauders v. Railroad, 134 Mo. App. 80; Edwards v. Cedar Rapids, 138 Iowa, 421, 116 N.W. 323; McGinnis v. Railroad, 21 Mo. App. 413; State v. Turner, 125 Mo. App. 21; Dreyfus v. Railro......
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...demanded of him. Wright v. Richmond, 21 Mo. App. 76; Rose v. Kansas City, 125 Mo. App. 231, 102 S.W. 578; Landers v. Railroad, 134 Mo. App. 80, 114 S.W. 543; Reeves v. Lutz, 191 Mo. App. 550, 177 S.W. 764; Jackman v. Railroad, 187 S.W. 786; McElwain v. Dunham, 221 S.W. 773; Rooker v. Railro......
  • Sullivan v. Union Electric Light & Power Co., No. 30356.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...App. 372; Thomas v. Keyes, 214 Mo. 487; Heberling v. City, 133 Mo. App. 544; Gallagher v. City, 133 Mo. App. 557; Landers v. Railroad, 134 Mo. App. 80; Jopson v. Shaw, 211 Mo. App. 336; Unrein v. Oklahoma, 295 Mo. 353, 244 S.W. 924; Martin v. Kansas City, 224 S.W. 141; Disbrow v. Peoples Co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT