Robinson v. Bush
Decision Date | 06 February 1918 |
Docket Number | No. 2082.,2082. |
Citation | 200 S.W. 757,199 Mo. App. 184 |
Parties | ROBINSON v. BUSH. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; J. F. Foard, Judge.
Action by C. H. Robinson against B. F. Bush, receiver of the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant. A. T. Brewster, of Ironton, and W. A. Welker, of Poplar Bluff, for respondent.
Plaintiff brought suit against defendant for damages to an interstate shipment of horses and mares shipped from East St. Louis, Ill., to Paragould, Ark. Upon trial before the court and a jury plaintiff recovered judgment for $340, and defendant appealed.
The horses were delivered to defendant in East St. Louis about 3:30 p. m. September 21, 1916, and arrived at Paragould, Ark., at 12:50 a. m. September 23d, and were unloaded by defendant's agent at 2 a. m. same morning. They were perhaps not loaded on car in East St. Louis until about 5 p. m., and there is no evidence showing just what time they were shipped out of East St. Louis. The distance from East St. Louis, Ill., to Paragould, Ark., is about 254 miles. About 33 hours elapsed from the time this shipment was delivered to defendant before it arrived at Paragould. At Illmo, Mo., about 142 miles south of East St. Louis, one mare was down, and defendant put the other 29 head in a separate car, and made the run from Illmo to Paragould, a distance of about 112 miles, in 8 hours and 45 minutes. There is no evidence giving the exact time the train pulling these horses arrived at Illmo. The conductor who had charge of the train from Illmo to Paragould said his train was due to leave Illmo at 2:30 p. m., and that he left at 4:50. Twenty minutes of this time was lost in the Illmo yards after this conductor had charge of the train, and the balance of the time from 2:30 to 4:50 he said was probably due to the lateness of the train from East St. Louis. Anyway, the horses were in the car between 23 and 25 hours between East St. Louis and Illmo, or fully 10 hours longer than is usual in making the run from East St. Louis to Illmo. When plaintiff delivered the horses to defendant they were in good condition, except one mare, which plaintiff describes thus:
When delivered at Paragould these injuries were noted by defendant's agent:
Plaintiff testified to many other injuries than these noted; stating that every horse and mare in the shipment were "just bunged up in different ways."
Defendant makes four separate assignments of error, but the view we take it will not be necessary to consider but two: (1) Alleged error based upon admission in evidence of alleged incompetent evidence; (2) the failure of the court to give a peremptory instruction for defendant. This assignment is based upon the proposition that plaintiff bottomed his cause of action on negligence, and not upon the carrier's common-law liability as an insurer; and defendant contends that plaintiff failed to make proof of sufficient negligence to justify the submission of the case to the jury.
On the Admission of Evidence.—W. E. Beacham, a witness for plaintiff, over defendant's objection and exception, was permitted to testify about what one Jake Harris told him concerning the supposed cause of injury to these horses. Harris was a brakeman, and his run was between Illmo and Paragould; and Beacham says that Harris told him at Piggott, a station between Illmo and Paragould, that this car of horses was "wrecked." Beacham, on being recalled, testified over the objection and exception of the defendant:
On cross-examination:
It is apparent that Harris may have been telling what some one else told him. It was shown by the conductor of the train which pulled this car from Illmo to Paragould that Harris was not connected with the train in any manner, but was brakeman on a different train, and that nothing happened to the train that transported these horses from Illmo to Paragould, and this conductor says:
Plaintiff undertakes to justify the admission of this evidence on the ground that Harris was the agent of defendant, and the admission of the agent in the circumstances would be competent against his principal. But this is upon the theory that such admission was made concerning a fact which the agent observed at the time of the happening thereof, and while engaged in the performance of his duty in connection therewith. The principle is well illustrated in Parr v. Insurance Co., 178 Mo. App. loc. cit. 160, 165 S. W. 1152, where it is said:
This principle is again clearly set forth in Atkinson v. School of Osteopathy, 240 Mo. loc. cit. 338, 144 S. W. 816, and in Bevis v. B. & O. Ry. Company, 26 Mo. App....
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