Riffe v. Wabash Railroad

72 Mo. App. 222 | Mo. Ct. App. | 1897

Smith, P. J. —

This is an actionby plaintiff against defendant to recover damages on account of the negligent failure of the latter to keep in repair a certain embankment on its right of way and on which its track is laid, and also on account of its .further negligent failure to keep a certain artificial water way open and free of obstruction, in consequence of which the waters of a certain creek washed away said embankment and flooded the former’s lands, thereby destroying the herbage thereon grown to his great injury, etc.

The answer was a general denial, coupled with the plea of the statute of limitations. The cause was submitted to the court without the intervention of a jury. The court found the issues for the defendant and rendered judgment accordingly.

At the trial the plaintiff excepted to the action of the court in excluding certain testimony offered by him; but by an examination of the points, authorities and argument presented by his brief we do not find that the action of the court in this regard is urged as a ground for the reversal of the judgment, so that we may fairly presume that he has abandoned the same. No instructions were requested or given by the court. It is therefore manifest there are no errors presented by the record for us to review.

AticeMriafbefore uons. It has been repeatedly held that under the present practice act that, where the court trying the issues of fact sits as a jury and gives a general verdiet, that the only way in which errors can be corrected if the court decides erroneously, or makes a misapplication of the law to the facts, is to ask instructions in order that the reviewing court may see on what theory the court tried and determined the issues. The court will not, in an action at law, weigh the evidence and determine whether or not the finding of the trial court was correct on the evidence. We are not advised by the record whether the court found for defendant on-the law or facts.

Omnia praesumuntur rite et solemnitur esse acta, donec probitur in contrarium. Altman v. Arnold, 27 Mo. 264; Easley v. Elliott, 43 Mo. 289; Wilson v. R’y, 46 Mo. 36; Wielandy v. Lemuel, 47 Mo. 322; Harrison v. Bartlett, 51 Mo. 170; Harrington v. Miner, 80 Mo. 270; Gaines v. Fender, 82 Mo. 508; Miller v. Brencke, 83 Mo. 163; Ins. Co. v. Stone, 42 Mo. App. 383; Wood v. Land, 22 Mo. App. 425.

It follows that the verdict of the circuit court must be affirmed.

All concur.