Goodson v. Wabash, St. Louis & Pacific Railway Co.

Practice—Requirements op Rule Fifteen of this Court-Appeal Dismissed.—Rale fifteen of this court requires that every part of the transcript relied upon as error, and all that is necessary to show it such, must be printed in the abstract. The object of the rule is that this court may be able to treat the appellant’s abstract, unless the respondent shall file a counter-abstract, as the record itself, and be saved the time and trouble necessary for an examination of the-transcript. Where no point is made on the pleadings, the effect of, the pleadings may be stated in the abstract and that .will be suffi-, cient, and so when none' is made as to the sufficiency of the evidence it will be enough to set forth its tendency. When the sufficiency of the evidence is questioned, so much of the transcript as contained all the evidence on that question should be' set out in the abstract in haeo verba. And so as to an instrument upon which appellant rests, he must set out the instrument itself, or so much oí it as is necessary to show the error of the court complained of, in the words of the instrument. Held, that the abstract in this case is insufficient, as not complying with these requirements.

Appeal from Carroll Circuit Court, Hon; James M. Davis, Judge. Statement of case by the court. The appellant has filed in this court the following abstract of the record in this case : “ This was an action instituted in the circuit court of Carroll county, Missouri, to recover the sum of two hundred and twenty dollars on account of damages alleged to have been sustained by plaintiff by reason of the negligent delay of certain live stock belonging to him while in transit npon defendant’s railroad, between Kansas City, Missouri, and Carrollton, Missouri, on the twenty-first day of March, 1883.” The within abstract is not intended to be a full transcript of either the pleadings or evidence in this cause, but simply as an abridgment of so much thereof as, in the judgment of appellant, is essential to a proper understanding of the issues. It was averred in the petition, that by a-special contract between plaintiff’s agents at Kansas City, and defendant, a car load of cattle was received by defendant at said place at 11:30 a. m. on the twenty-first day of March, 1883, for transportation and delivery to plaintiff at Carrollton. That said car was negligently and carelessly detained on the track at Kansas City at least fonr hours before starting, and was negligently and carelessly detained at various stations between Kansas City and Carrollton for at least three hours, and did not arrive at Carrollton until 11:45 p. M. of said day, having been Relayed at least seven hours over the usual and reasonable time. The answer of defendant admitted the execution of the special contract as averred by plaintiff, and als,o admitted the fact of the shipment itself. All the other allegations of the petition were denied. For further answer, defendant set out the special contract of shipment in fall, and averred that all of its conditions were kept and performed by the defendant, and broken by the plaintiff. The reply of the plaintiff admitted the execution oí the contract as set forth in the answer of the defendant, and denied the performance of its conditions upon defendant’ s part. The plaintiff testified, that on the day in question, he received a shipment of cattle from Payné & Company, at Kansas City. There were fortyrtwo head of yearling and two year old cattle shipped in the car. According to his recollection the train, with the cattle on board, arrived at Carrollton about twelve o’clock at night. The usual arriving time of that train was about seven o’ clock p. m. It was one o’clock before they got the cattle unloaded. When the cattle were unloaded, they were iu a very bad condition. One-third of them were unable to stand, and four finally died. The value of the cattle per head was from twenty-six to twenty-seven dollars. The general injury was from fifty to seventy-five dollars to the whole car load. The usual running time of that train from Kansas City to Carrollton was in the neighborhood of about five hours. The conductor of the train told the witness at Carroll-ton. before the cattle were unloaded, that they were ■dead when they left Kansas City, and that they did not leave until after five o’clock. The conductor also said that he never saw cattle in such a shape in his life. 'That they were piled on top of one another and were half dead when they left Kansas City. Upon cross-examination, the plaintiff stated in substance, that the car was not overloaded. James H. Payne, witness for plaintiff, testified that he was a member of the firm of Payne & Co., at Kansas ■City; that he remembered buying and shipping to plaintiff on or about March 21, 1883. At the time they were shipped, the cattle were in good condition, or in such condition as stock cattle usually are at the time of loading them. Could not swear positively whether h'e ■superintended the loading of them or not. The usual time of loading stock for the noon train was 11:30. Sometimes a few minutes earlier or later, then they were hauled to the yards, the train made up, and they pull ■out at twelve o’clock. A certificate issued by the firm of Payne & Co. was here introduced in evidence, which recited that the car •contained forty-two head of cattle, and was loaded at 11:30 a. m., March 21, 1883. The witness further stated, that he did not know at what time the train left Kansas City on this occasion. He only knew when the car was loaded, and had no personal recollection of the shipment. The claim for damages made by plaintiff was here ■offered in evidence. It was dated March 22, 1883, and was admitted by defendant to have been received in due time. The original contract of shipment was then offered in evidence. It was thereupon admitted by the parties, that the car of live stock in question was shipped under the contract in evidence ; that said contract was the only one under which the shipment was made, and that it was ■executed March 21, 1883, by Payne & Co., as agents for the plaintiff. This was all the evidence in the case. The court then overruled defendant’s demurrer to the evidence, and exceptions to such ruling were duly saved. The following instructions were given for defendant: “1. The court instructs the jury that under the contract in evidence, the burden of proving negligence on the part of defendant is upon plaintiff in this action, and the jury are instructed that if nothing more is shown than a mere delay of seven hours in the transportation of plaintiff’s cattle from Kansas City to Carroll-ton, at the time in question, then the verdict must be for the defendant.” “2. If the jury find from the evidence that the injury a.nd damages to plaintiff’s cattle, at the time and place in question, was occasioned by putting too many of said cattle in the car, then they are instructed that • plaintiff cannot recover' in this action, and the verdict must be for the defendant.” The following instruction for defendant ivas refused r “3. The court instructs the jury that even though you may find the defendant was negligent, by reason of delay, in the transportation of the cattle, under the other instructions given in this cause, and should find the issues for the plaintiff, then you can only, under the contract in evidence, and sued upon, return your verdict for such an amount as you may believe and find from the evidence the plaintiff actually expended in the purchase of food and water for said cattle, and no other •amount whatever, and if the plaintiff expended nothing for that purpose, your verdict must be for defendant.” The court refused to give said instruction, to which ruling defendant duly excepted. On the eighteenth day of December, 1883, the court, sitting as a jury, found a verdict in favor of plaintiff, assessing his damages at the sum of one hundred and fifty-eight dollars, and entered judgment against defendant for said sum. On the same day defendant filed its motion for a new trial, assigning the usual grounds therefor. The cause was thereupon continued upon said motion until the March term, 1884, of said court, and on the twenty-seventh day of March, 1884, and at the March term thereof, said motion was, by said court, overruled, to which ruling and order of the court defendant then and there excepted. On the same day defendant presented its bill of exceptions, which was signed by the court, whereupon defendant duly perfected its appeal to the supreme court of Missouri, where, by operation of law, the cause was transferred to this court.