70 Mo. App. 183 | Mo. Ct. App. | 1897
Plaintiff was injured by defendants7 cars at a railroad crossing near Carrollton and having brought this action on account thereof obtained judgment for.$1,000.
There is a gradual ascent from Carrollton to some distance beyond the crossing in question, or as is commonly called an up-grade. On the south side of the railroad are two public highways, one running directly south from said crossing and one running east and west, which intersects the road running south at the intersection of the latter, with appellants7 right of way, where they merge into each other, and run thence north, crossing the railroad track at right angles, to the north side of the right of way, thence west to Carrollton. The right of way extends about fifty feet south of the track, on the west and east side of the highway which crosses the track. On the east side of the highway, beginning a. few feet south of the track, on the right of way is a dump, about six feet high, extending to the south side of the right of way. At the time plaintiff received her injuries vegetation and weeds about eight feet high were standing on said dump, and extending about the same height for one hundred yards east on the right of way immediately north of the highway running east and west. Said weeds and vegetation were
There was abundant testimony to justify the verdict of the jury, and we have therefore only to pass upon the action of the court in giving instruction number 2, for plaintiff, and refusing instruction number 4, asked by defendants, as also defendants’ complaint founded upon the court’s refusing it a continuance and failing to rebuke plaintiff’s counsel for remarks made at the argument.
In the motion for new trial the matter is referred to in this language: “10th. Because the court erred in permitting counsel for the plaintiff, James L. Minnis, to use language as charged in the affidavit of T. J. Whiteman, hereunto attached as a part of this motion
The affidavit referred to., among other things,, on other subjects, contains the following: “And affiant further says, that in the argument to the jury, at the conclusion of the evidence, James L. Miunis, one of the counsel for plaintiff, used language substantially as follows.: ‘Of course all these men who are working for the defendants will swear that the whistle was blown and the bell was rung, everybody expects that they would do that; they wouldn’t be working for the railroad company if they didn’t.’ ”
It does not appear by the foregoing that the court did not rebuke counsel for using the language set out. It does not follow from the fact that defendants excepted to the language that the court did not rebuke counsel in the presence of the jury for using the language. It does not appear that the court made a ruling on the subject. The bill of exceptions states that exception was taken to the words uttered, but no exception was taken to the action of the court. It does not appear whether the language was or was not justified by what may have been uttered by defendants’ counsel. It does not appear that the affidavit was introduced in evidence on the hearing of the motion for new trial, and under the ruling of the supreme court we must rule the point against defendants. State v. Boyle, 107 Mo. 36. In that case Judge Macearlane used the following language:
“ The usual complaint is made to the remarks of the prosecuting attorney in his' argument to the jury. This objection was raised in the motion for a new trial, and was supported by an affidavit, but the bill of exceptions fails to show that this question was heard, on the hearing of the motion, or that the affidavit was read to the court, or that other evidence was offered.