McHenry v. Wabash R. Co.

• Decision Date: 06 December 1948
• Docket Number: 21103
• Citation: 216 S.W.2d 538
• Parties: McHENRY v. WABASH R. CO
• Court: Kansas Court of Appeals

216 S.W.2d 538

McHENRY v. WABASH R. CO

No. 21103

Court of Appeals of Missouri, Kansas City

December 6, 1948

'Not to be published in State Reports'.

J. A Cooley, of Kirksville, and John V. Goodson, of Macon, for appellant.

J. H Miller, of St. Louis, Waldo Edwards, of Macon, and Jayne & Jayne, of Kirksville, for respondent.

OPINION

BOYER PER CURIAM

This is an appeal from a judgment for the defendant which was rendered pursuant to a directed verdict on defendant's motion at the close of plaintiff's case. Plaintiff's motion for a new trial was overruled and he then filed timely notice of appeal from the judgment to this court. The transcript on appeal and appellant's brief appear to have been served upon respondent in time. Respondent did not file a brief in the case, but shortly after receiving appellant's brief, filed its motion to affirm the judgment because of several specifically alleged deficiencies of said brief in violation of the rules of court and the statute pertaining to the form and manner of such briefs to be filed on appeal. There have been no suggestions filed by appellant in opposition to said motion.

By statutory enactment, all briefs shall be prepared as provided by rule of the appellate court. Sec. 139(a), Civil Code of Missouri, Laws 1943, p. 394. Mo.R.S.A. § 847.139(a). Rule 1.08 adopted by the Supreme Court and applicable to appellate practice and procedure provides that the brief for appellant shall contain (1) a concise statement of the grounds upon which the jurisdiction of the review court is invoked; (2) a fair and concise statement of the facts without argument; (3) the points relied on, which shall specify the allegations of error. '(b) The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. * * * (c) The statement of the facts and the argument shall have specific page references to the transcript on appeal.'

Upon examination of appellant's brief, we find that it is deficient and fails to conform to the requirements of the rule above mentioned in several particulars. There is no statement at all of the grounds upon which the jurisdiction of this court is invoked. However, we find from the statement that plaintiff sought recovery of $ 1175 damages from the defendant for the loss of his motor truck when it was struck by a train of the defendant at a street intersection in the City of La Plata in Macon County. The statement shows the petition charged the defendant with both primary and humanitarian negligence. There is no reference to the answer of defendant or a statement of all the issues raised by the pleadings. By reference to the transcript, we find that the answer of defendant denied all charges of negligence and pleaded contributory negligence on the part of plaintiff as an affirmative defense. The petition charged that defendant had failed to maintain the crossing in proper condition; that the macadam between the rails and between the boards paralleling the rails was not flush with the top of said boards and rails of the track; that it was dug out, pitty and rough, and that there was a hole in said crossing which caused plaintiff's truck to stall.

One of the points sought to be presented on appeal states that the rough condition of the crossing created a state of facts under the evidence to warrant submission of the case to the jury on that issue alone....