91 Mo. 58 | Mo. | 1886
Action for double damages for killing a sow and heifer; verdict for plaintiff on both
I. The declarations made by the section foreman were inadmissible, because not a part of the res gestae ; not coincident with the event in which the suit originated, but a mere narration of a past occurrence. McDermott v. Railroad, 87 Mo. 285; Devlin v. Railroad, 87 Mo. 545; Adams v. Railroad, 74 Mo. 554.
II. The issue in this cause was, whether the animals of plaintiff got on defendant’s track at a point where it was required by law to erect and maintain a lawful fence. The question of negligence was wholly foreign to the issue. If the defendant failed to comply with its statutory duty, it became amenable to the penalties of the statute, whether guilty of negligence or not. Instructions which wholly ignore the issues raised by the pleadings, do not instruct; are erroneous if given, and properly refused. Henry v. Bassett, 75 Mo. 89.
III. It is claimed by plaintiff ’ s counsel that none of the instructions said to have been given on the part of the plaintiff, nor those said to have been given on behalf of the defendant, were, in fact, given, and a certificate of the circuit court clerk has been filed in this court to verify that statement. It is scarcely necessary to say that errors in the transcript cannot be remedied, or corrected, in this way, nor the recitals in a bill of exceptions thus contradicted. Baker v. Loring, 65 Mo. 527; State v. Dougherty, 59 Mo. 104; State v. Van Zandt, 71 Mo. 541; Gardner v. Railroad, 68 Iowa, 588. The proper course for a party to pursue in such circumstances, is either to stipulate with his adversary as to any corrections to be made, or omissions to be supplied ; or else to suggest diminution, and sue out a certio-rari in the ordinary way.
The judgment is reversed and the cause remanded.