McCollister v. St. Louis, M. & S. E. R. Co.

• Decision Date: 03 March 1908
• Citation: 108 S.W. 613,129 Mo. App. 321
• Court: Missouri Court of Appeals
• Parties: McCOLLISTER v. ST. LOUIS, M. & S. E. R. CO.

108 S.W. 613

129 Mo. App. 321

McCOLLISTER v. ST. LOUIS, M. & S. E. R. CO.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

1. APPEAL — PROCEDURE—TIME—SERVICE OF COPY OF JUDGMENT AND ORDER.

Where judgment was rendered July 19, 1905, and an appeal allowed defendant on July 26th, and a bill of exceptions filed December 23, 1905, though the appeal was properly returnable to the October term, 1905, the latest time in which defendant had to perfect the appeal by filing a certificate of judgment and appeal, or a full transcript, was the March term, 1906, and the appeal not having been perfected within that time as required by Rev. St. 1899, § 813 [Ann. St. 1906, p. 783], it cannot be heard on the merits.

2. SAME—COMPUTATION OF TIME.

That defendant applied for a writ of error did not suspend an appeal, bill of exceptions for which had been filed with the clerk, for the time being, so as to relieve defendant of the duty to file its transcript, where defendant was in default in filing such transcript when the writ of error was applied for.

Appeal from Circuit Court, Butler County, J. C. Sheppard, Judge.

Action by B. R. McCollister against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. Orchard, for appellant. E. R. Lentz, for respondent.

GOODE, J.

This action was instituted in the circuit court of Butler county September, 1904, to recover damages for an injury to plaintiff and injuries to his horse, wagon, and harness. The evidence shows plaintiff, a companion by the name of James Frazier, and another companion were driving along Ash street, in the city of Poplar Bluff, on August 20, 1904. The team belonged to plaintiff, but Frazier was driving. It seems the parties in the wagon lived in the country and were on their way home. Ash street is crossed by the line of defendant's railroad. As the plaintiff approached the crossing, a train was on the track at that point and was switching. Plaintiff drove as near the track as he could and waited for the train to move on. The engine and some of the cars pulled away from the crossing, and plaintiff started to drive over. When he got on the crossing, the part of the train attached to the engine stopped suddenly, reversed its direction, and ran back rapidly toward the crossing, threatening a collision with the wagon. In order to avoid a collision, the driver swung the team to the right and backward so that it would clear the track. There was a culvert just at the sidewalk on Ash street. When the team and wagon were swung around to avoid the train, the wagon went into the culvert, and Frazier, who was driving, and the plaintiff, were injured; also, one of the horses, the wagon, and harness. The negligence charged is that, after the train had moved forward and opened the crossing at Ash street, and plaintiff was in the act of driving over the crossing, and while he was in full view of the engineer and fireman, said parties, seeing plaintiff's perilous position, but without giving any warning by whistle or bell, backed rapidly along the track, and so negligently and carelessly handled the locomotive and train as to afford plaintiff no opportunity to get over the track, and...