23 Mo. App. 120 | Mo. Ct. App. | 1886
This is an action to recover damages for killing plaintiff’s cow, alleged to have been done by one of defendant’s trains of cars. The accident occurred inside of the switch limits of the town of Park-ville in Platte county, on the eleventh day of June, 1884. The charge is that the injury resulted from the negligence of defendant’s servants in charge of the train in managing and running the same.
Judgment for plaintiff, from which the defendant prosecutes this appeal.
At the close of plaintiff’s evidence, and again, at the close of all the evidence, the defendant interposed a demurrer to the evidence. This demurrer, we are of opinion, the court should have sustained. When the plaintiff rested, while it may be conceded there was sufficient evidence to have warranted the jury in finding that the cow
The only remaining question, therefore, for determination is, did the defendant’s evidence (which it unnecessarily introduced), so supplement the proof submitted by plaintiff as to supply the essential omission on the issue of negligence ?
The evidence tended to show that the Missouri river at Parkville runs nearly south within a few feet of the main track of the defendant; its embankments are very high. On the w'est side of the defendant’s track, from the Parkville depot to the bridge, there is a narrow strip of ground which comes to a point at the mouth of the ravine where the bridge is located. This tongue of land widens towards the depot, northward, to ten or twelve feet in breath; its width in dry land varies according to the rise and fall of the river. A switch extends along the east side of the main track about ten feet from it, from near the depot southward, and extends across the ravine on a separate bridge (trestle). On this switch track some of the witnesses testified they saw a freight (construction) train standing about five or six o’clock, a. m., on the morning of the accident. George Davis testified that the same train was standing at the same place all night. This train of freight (construction) cars formed a barrier to the east of the main track, so that cattle standing on the tongue of land ne
This is the substance and effect of the evidence. Wherein there is a single fact to warrant the verdict of the jury, we are unable to discover. The case, as indicated by one of the instructions given and those refused, 'as well as the argument of respondent’s counsel at this bar, was tried on the theory, that it was the duty of th^.
The evidence failing to show that the train could have been stopped in time to have averted the injury after the discovery of the danger, the plaintiff failed to make out a case.
I. Among the questions of fact, submitted for the finding of the jury, and'the answers thereto, are the following :
“10. Could the train have stopped in time to have saved the animals, after the engine reached the point at which they could have been seen by the engineer ? A. We don’t know.”
“11. Was the engineer at his post of duty, and discharging his' duties with reasonable care, when they approached the point of injury in question? A. We don’t know.’'’
“ 12. How far were the cows from the engine, when first discovered by the engineer? A. We don’t know.”
*127 “13. If the engineer was guilty of any negligent act or omission in the running of his train, prior to seeing the animals on the track, which contributed to the injury, state what it was. A. We don’t know.”
“14. Bid the engineer in charge of the train, after he became aware that the animals were upon the track, fail to take any precaution or fail to do anything, which a man of reasonable care and prudence, would have taken or done, under the surrounding circumstances, and ■which, if done or taken, would have prevented the injury % If so, state what it was. A. We don’t know.”
The answers made, “We don’t know,” were equivalent to a finding that the facts were not satisfactorily proven by the plaintiff, upon whom rested the burden of this proof ; and entitled the defendant to a judgment on the special verdict. Morrow v. Com'rs of Saline county, 21 Kas. 484 ; A., T. & S. F. Ry. Co. v. McCandliss, 33 Kas. 366 ; Hopkins v. Stanley, 43 Ind. 554.
II. As the statute authorizing the submission of certain facts for the special finding of the jury is new in this state, we deem it well to say, at the outset, that this statute is not to be made a snare to entrap and mislead the jury, nor an instrument in the hands of the practitioner for cross-examining the jury on minor and unimportant details. The questions submitted should be strictly limited to the material issues made in the pleadings, and the facts essential to support the verdict, one way or the other. They should be as few in number as will attain the ends of' justice, so as to avoid confusing the jury and leading them into unprofitable wrangling over non-essentials. And especially should the questions to be answered be intelligible to the apprehension of the average juror, and be in such form as to admit of a categorical answer under the evidence.
Some of the questions, other than the foregoing, submitted in this case, are violative of these rules. The proper practice for taking advantage of the abuse of this statute, in this respect, would be for the partv obiectina
It being clear, from the answers made by the jury to important questions of fact, that the plaintiff failed to make out a case against the defendant, the judgment should have been entered for the defendant. The judgment of the circuit court is accordingly reversed.
In this case, what purports to be a bill oi exceptions, has been considered by the majority as a bill of exceptions proper, because it has been so considered by the counsel on either side. The fact is, the paper purporting to be a bill of exceptions is not signed by the judge of the trial court, and, therefore, is not a part ol the record in the case. Sections 3635-3639, Revised Statutes; State v. Jones, 58 Mo. 506; Smith v. Ry. Co., 55 Mo. 601. The abstract of the record which counsel are to present to this court, under our rule, presupposes there is a record.
. Parties will not be permitted to fabricate a record. They cannot, by agreement, impose on the court, as á record, that which, by law, cannot be. They cannot, even by agreement, dispense with briefs and assignments of errors. Snyder v. Hopkins, 39 Mo. 418; Dissee v. Frank, 52 Mo. 551.
We cannot try a sham case because parties agree we may.
I deem the decision in this cause contrary to the decisions in State v. Jones, 58 Mo. 506, and Smith v. Ry.
It is suggested by Ellison, J., since the opinion herein was written, that the transcript shows that what purports to be the bill of exceptions does not appear to be signed by the judge of the circuit court; and, therefore, we ought to treat the case as if no bill of exceptions were in the record. By rule fifteen, of this court, it is provided, in substance, that: In all cases the appellant or plaintiff in error shall file with the clerk of this court, on or before the day on which the cause is docketed for hearing, five copies of a printed abstract, or abridgment of the record in said cause, setting forth so much thereof as is necessary to a full understanding of all the questions presented to this court for decision, together with a brief containing in numerical order the points or legal propositions relied on, with citation of authorities, etc. The rule then provides that copies of this abstract, etc., shall be furnished to the opposite party, who shall, within eight days thereafter, deliver to the appellant or plaintiff in error a copy of his brief in response, with briefs and points relied on, “ and such further abstract of the record as he may deem necessary,” and shall file with the clerk said briefs, etc., before the hearing of the cause. Under this.rule this court has repeatedly and unif ormily held, that where the respondent or defendant in error does not file any additional abstract, we will accept that of the appellant or plaintiff in error, as containing a correct statement of the record, and that we will not go behind this abstract to look into the transcript to see whether it and the abstract correspond.
The appellant in this case complied with this rule. The respondent filed no counter abstract, controverting the correctness of appellant’s abstract, in the particular in question. The abstract expressly states, on page twenty-
The respondent, as already stated, made no objection to this recitation in the abstract; he made no point thereon in his brief and argument, but throughout, has treated the case as if the exceptions were duly taken and saved. To allow this point, raised for the first time after the hearing, by one of the court, would, in my opinion, be not only unjust to the appellant, but virtually destroy the purpose of rule fifteen. The record recites that the bill of exceptions was duly presented and signed by the judge, and is made- a part of the record. It is quite clear, to my mind, that the omission of the judge’s name at the bottom of the bill of exceptions, is a mere clerical mistake in transcribing the record by the circuit court clerk; and had the respondent made any question as to this fact in his brief in response, as he should have done, if any advantage thereof is to be taken, the probabilities are that the whole matter would have been rectified, by appellant, by asking for a certiorari, unless respondent had consented to treat the case as if the judge’s signature was appended to the bill of exceptions. The acceptance, by respondent, of appellant’s abstract, without objection bn account of this matter, and treating the case throughout as if the bill of exceptions were regular, should be treated by this court as a waiver, and recognition by him of the fact that the omission of the judge’s name was a mere clerical error.
It would now, after the submission of the case, be the grossest injustice to the appellant to allow this objection, raised by one member of the court, sua sponte.
The opinion of Ellison, J., proceeds upon the assumption that the majority hold that a bill of exceptions not signed in fact by the judge, may become a part of the record by agreement of counsel. TMs is not -the point. We are all agreed that a bill of exceptions must be signed by the judge before it is entitled to record. But the question here is one of practice, under the rules ■of this court, as to what is the evidence of what the record does contain? The rule says the abstract, on which the parties have agreed.. The parties surely •could come into this court and stipulate that while the transcript sent up here, through mistake of the clerk, omitted the signature of the judge, as a matter of fact the bill of exceptions was signed by the judge, and this ■court would accept this as correct, and dispose of the case accordingly, without a certiorari.
The effect of respondent’s silence, and treating the case as if the bill of exceptions, as stated in the appellant’ s abstract, was regular, is equivalent to such stipulation. So we hold that no such snap judgment should