Maberry v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 664
• Parties: MABERRY v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 664

MABERRY

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

Smith & Krauthoff with T. J. Portis for appellant.

(1) The court ought not to have permitted the testimony of the witness, John Wunderlich, as to the reasons which induced him to raise the value of the stock sued for from $100 to $135 or $145, to go before the jury. He had stated that he had appraised the stock at $100, and that this appraisement was true, and was then permitted to state in answer to a question from the plaintiff, that he fixed the value at these figures because he thought “it would be paid without suit.” (2) And the evidence as to the defective condition of the fence at points two or three hundred yards or half a mile distant from the place where the stock entered upon the railroad, was immaterial. The fact that the defendant's fence was defective at other points had no bearing upon its liability in this case, and in no wise occasioned or contributed to the killing of the plaintiff's stock. Cecil v. Pacific R. R., 47 Mo. 246, and cases cited; Luckie v. C. & A. R. R., 67 Mo. 245, and cases cited; Shearm. and Redf. on Negl. (3d Ed.) § 462. (3) The costs should have been adjudged against plaintiff. Having brought two suits when the causes of action could have been ““joined according to law” (R. S., §2850), the statute expressly provides that “the plaintiff shall recover only the costs of one action,” and that “the costs of the other action shall be adjudged against him.” R. S., § 2936.

Edwin Silver for respondent.

(1) There was no error in the admission of the evidence of John Wunderlich complained of. The witness merely explained his previous testimony as to a matter brought out by defendant, and which plaintiff had a right to have explained. Even if incompetent, this evidence would afford no ground for a reversal of the judgment. To have this effect, even incompetent evidence must be calculated to prejudice or mislead the jury. Craghead v. Wells, 21 Mo. 404. (2) The evidence of the defective condition of the fence for half a mile up and down from the place of killing and for two or three hundred yards on the north side, was competent on general principles, as affording the basis for the jury to draw the inference that the cattle got on the track at the place they were found dead, and, also, to corroborate plaintiff's evidence. But, if incompetent, it could not prejudice defendant as the other evidence showed the fence was out of repair where the cattle got on, and that it was not at a public crossing nor in a town, but in the country along the farms. The cases referred to by appellant are not in point. (3) Appellant made no motion to consolidate costs in the justice's court. This he should have done. R. S., sec. 2933. Conceding that this was not necessary, still the motion to tax costs against plaintiff was properly overruled. Section 2936, relied on by appellant, only has reference to costs accruing in the justice's court, and not in the circuit court. Defendant did not object in the justice's court that costs had been taxed against it, and the motion in the circuit court was directed against costs in both courts. The motion being bad in part was bad in toto. Besides, defendant, in support of its motion, only offered the transcript and judgment of the justice in the other case and offered nothing to show that there had been a judgment for costs against it in the other case in the circuit court. The cause was appealed and the judgment thereby vacated (see 78 Mo. p. 549, and 9 Mo. p. 252) and for aught that appears from the evidence offered in support of the motion, the circuit court awarded no judgment in the other case for costs or anything else against defendant. Defendant should have supported its motion, if its theory is correct, by offering the judgment of the circuit court in the other case so that the court might see that there were,...