43 Mo. App. 450 | Mo. Ct. App. | 1891
This case, which was before the court on a former appeal (38 Mo. App. 408), has been tried upon the same pleadings, and upon substantially the same evidence. The trial resulted in a verdict and judgment for the plaintiff in the sum of $766.06. The defendant again appeals to this court, and submits the case upon a printed abstract, statement and argument, in which the facts of the case are set out with great fulness, and in which 'all the instructions given, refused and modified are printed. Upon the premises thus laid an able and elaborate argument is made, directed almost entirely to questions of fact. We cannot of course decide controverted questions of fact; and, in so far as this argument, touches questions of law, most of these questions were ruled against tire appellant on the former appeal, which rulings have become the law of this case. The circuit court on the trial, from which this appeal is prosecuted, carefully avoided the errors for which its former judgment was reversed by this court, and submitted the case to the jury upon instructions, which certainly afford the defendant no ground of complaint.
Recurring to the facts of the case, they were these: The plaintiff, by his servant, delivered to the servant of the Union Stock-Yards Company at St Louis a valuable horse, to be shipped over the defendant’s railroad to Louisiana in this state. In so doing, the defendant preferred the request that he be allowed to load the
The instructions upon which the court submitted the case to the jury, given, by the court of its own motion, were drawn in conformity with the views of this court on the former appeal, except that they submitted to the jury the question, whether the Union Stock-Yards Company, in loading the horse, acted as the agent of the plaintiff or as the agent of the defendant. This question was fairly controverted upon the evidence. Mr. Ramsey, who was the secretary of the Union Stock-Yards Company, testified that he received the horse for shipment as the agent of the defendant. In answer to a question, who got paid for the loading of this stock into the cars, he said : “ Well, no one got paid for it from the shipper. We put in a bill to the railroad company ( meaning the defendant) at the end of the month for loading cars.” In answer to the question, “ Who was it paid you for the loading of these two horses in the cari” he said: “If anyone paid us, it was the railroad company.” This question was further put: “You had an agreement with them to load and unload all stock for their road % ” His answer was: “Yes, sir.” Mr. Bleeker, who was the defendant’s station agent at St. Louis, also testified that the defendant paid the Union Stock-Yards Company for loading and unloading all its stock cars, that were loaded and unloaded at St. Louis at the time when this accident occurred. This was clearly sufficient evidence to authorize the court to submit to the jury the question whether, in loading this horse upon the defendant’s car, the Stock-Yards Company acted as the agent, of the plaintiff or as the agent of the defendant.
Another argument is directed to us in behalf of the defendant upon the proposition of fact, that the contract of shipment set up in the defendant’s answer was in fact signed before the horse was killed. The question it will be remembered was submitted by the court
The defendant requested the court to give to the jury twenty-three instructions. Some of these instructions were long, and two of them were broken into several paragraphs. The court might with great propriety have refused them all because of their number alone. The court nevertheless, out of evident solicitude for the rights of the defendant, took the pains to wade through them, and to eliminate what the court deemed the good from the bad, so that the court in fact gave
There is no merit in this appeal, and the judgment will accordingly be affirmed. It is so ordered.