Lower v. Marceline Coal and Mining Company
| Decision Date | 04 April 1910 |
| Citation | 126 S.W. 987,142 Mo.App. 351 |
| Parties | OLIVER LOWER, Respondent, v. MARCELINE COAL AND MINING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
Judgment affirmed.
Benj. L. White for appellant.
C. M Kendrick and Bresnehen & West for respondent.
(1) The presumption of law is that every action of the trial court was proper, and the burden rests on the appellant to show by the record that prejudicial error was committed. Bauer v Cabanne, 11 Mo.App. 14; Johnson v. Long, 72 Mo 210; Holland v. Cunliff, 96 Mo.App. 67; State v. Hunter, 71 Mo. 435; Rhodes v. Rhodes, 96 Mo.App. 327; McKinney v. Northcott, 141 Mo. 146. (2) Where the evidence is not preserved in the bill of exceptions the appellate court will presume that the instructions were warranted by the evidence. State v. Brown, 75 Mo. 317; Campbell v. Buller, 32 Mo.App. 646; Hadley v. Bernero, 97 Mo.App. 315.
Plaintiff, a miner employed by defendant, the owner of a coal mine, was injured by the fall of material from the roof of the mine. The cause of action pleaded in his petition is founded on specified negligence of defendant. The answer, in addition to a general denial, contains pleas of contributory negligence and assumed risk. Verdict and judgment were for plaintiff in the sum of one thousand dollars and the cause is here on the appeal of defendant. The errors assigned and argued by defendant relate entirely to the rulings of the court on the instructions. Defendant failed to preserve in his bill of exceptions any of the evidence adduced at the trial. He states in his abstract that "plaintiff introduced evidence tending to support the allegations of his petition," and that "the defendant introduced evidence tending to support the allegations of the answer." The abstract contains everything essential to a consideration of the case on appeal but the evidence. In such posture of the case, every presumption must be indulged in favor of the judgment and as far as the face of the record before us will permit, we must assume the evidence was favorable to the cause of action asserted and unfavorable to the defenses interposed.
The burden always is on the appellant to convince the appellate court not only that error was committed against him but that such error was prejudicial. An instruction may be erroneous considered only with respect to the issues made by the pleadings, but when considered in the light of all the evidence, its error may prove to be harmless and not of a character to justify the appellate court in disturbing the judgment. I...
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