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tiff alleges it sold and delivered to defend- himself had agreed to go ahead and sue for the
ant. The jury returned a verdict for defendant, and the cause is here on the appeal of plaintiff. The only errors alleged and pressed upon our attention by counsel for plaintiff relate to matters of exception, and we find the abstract of record in such condition as to preclude us from reviewing them. There is no proper separation of record proper and bill of exceptions in the abstract, and no recital of an exception to the order overruling the motion for a new trial. The Saving of an exception to the overruling of the motion for a new trial is a necessary condition to the review on appeal of matters of exception, and the failure of the bill of exceptions, as reproduced in the abstract, to Show Such exception, precludes the consideration of any errors, except those appearing on the face of the record proper. No such errors are assigned or appear in the record, and there is nothing for us to review. Reed V. Moss, 258 Mo. 172, 167 S. W. 523; Recar v. Recar, 171 Mo. App. 632, 154 S. W. 423; Reimer V. Cement Co., 177 Mo. App. 198, 164 S. W. 181; Hays v. Foos, 223 Mo. loc. cit. 423, 122 S. W. 1038; Ferguson V. Baker, 187 Mo. App. 619, 173 S. W. 41. The judgment is affirmed. All concur.
whole damage to the whole shipment, he could not maintain his action for damage to the partnership live stock, since there was no showing of his partner's intention to transfer, his interest in the cattle or his interest in the claim for damages to the plaintiff. [Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 362-368; Dec. Dig. 3:3199.] 5. PARTNERSHIP @->199 – ACTION - PARTIES PLAINTIFF. No formal assignment by a partner of his interest in partnership property is necessary to enable another partner to sue alone for injury thereto. Any action showing an intent to transfer the interest to the suing partner is sufficient. [Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 362-368; Dec. Dig. Q:199.] Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge. “Not to be officially published.” Action by J. E. Hardesty against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, Who appeals from an Order granting defendant a new trial as to the second count of the complaint, while defendant appeals from the Overruling of its motion for new trial as to the first count. Judgment affirmed as to both counts.
Thomas R. Morrow, Geo. J. Mersereau, and John H. Lathrop, all of Kansas City, for appellant. J. Walter Farrar and E. Y. Blum, both of Kansas City, for respondent.
TRIMBLE, J. Plaintiff, having an arrangement with defendant’s station agent for the shipment of a drove of cattle, placed them in defendant’s stockyards late Monday night, preparatory to loading them early Tuesday morning. During the night, and while waiting for the cars, the Stockyard's fence Was broken down and the cattle eScaped, involving expense to recover them and causing loss by reason of 'shrinkage and poor appearance for the market. This suit is for the resulting damage, and is based upon defendant's failure to maintain adequate and suitable pens in which to hold cattle preparatory to shipment over defendant's road.
The petition is in two counts. The cattle consisted of 84 head belonging to plaintiff individually and 120 head belonging to Burton & Hardesty, a partnership of which plaintiff was a member. The first count covered the individual cattle, and the Second count covered the partnership cattle. A trial resulted in a verdict in plaintiff's favor for $325 on the first count and $350 on the second. A new trial Was granted as to the second count, on the ground that the cause of action thereon Was not ShoWn to be in plaintiff; but, as to the first count, the motion for new trial Was Overruled. Whereupon both sides appealed, plaintiff from the order granting defendant a new trial as to the second count, and defendant on account Of the overruling the motion as to the first count. We will dispose of defendant's appeal first.
 It is insisted that a demurrer to both counts should have been sustained, and the case taken from the jury. Defendant does not deny that its duty is to maintain reasonably Secure facilities for holding cattle preparatory to loading them for Shipment, and that it inviteS patrons Of its road to use those facilities for that purpose, nor that, in this case, its duty to plaintiff began as Soon as the cattle Were delivered in the penS. Nor does it deny that it is liable if Said pens were not reasonably safe and Secure, and the cattle escaped by reason thereof. Its contention is that there is no evidence to ShOW that the yards were not reasonably Secure, and that, upon the evidence submitted, it is more likely the cattle escaped because of their wild nature and Vicious propensities than that they escaped on account of the inSecurity Of the pens under Ordinary circumstances, or, at least, that the evidence leaves it to conjecture Whether the escape Was from the One cause or the Other. It is also contended that, since the evidence shows it erected Sound and Suitable fences, that Condition is presumed to continue, and defendant is not liable unless knowledge of a defective condition is brought home to defendant, or unless it is shown that a defective condition had existed for such length of time as that knowledge thereof must be presumed, neither of Which, according to defendant'S View, Was ShoWn in this case.
In Mason v. Missouri Pacific R. Co., 25 Mo. App. 473, it was held that the liability Of the company begins at the time the cattle are delivered in the pens preliminary to their carriage, and that the carrier is in duty bound to keep the pens in a reasonably Safe and secure condition. This rule has been adhered to ever since. McCullough v. Wabash Western Ry. Co., 34 Mo. App. 23; Cooke v. Kansas City, etc., R. Co., 57 Mo. App. 471, loc. cit. 478; Tracy v. Chicago & Alton R. Co., 80 Mo. App. 389, loc. cit. 392. The duty of the carrier begins when the stock is delivered into the pens. Covington Stockyards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 469, 35 L. Ed. 73. The same rule applies to pens as to CarS. Lackland V. Chicago & Alton R. Co., 101 MO. App. 420, 74 S. W. 505; Pruitt W. Hannibal & St. Joseph R. Co., 62 Mo. 527.
[2, 3] We are convinced the court did right in sending the case to the jury. The purpose of the pens was to hold the cattle until they could be loaded, and it was the duty of defendant to keep the Stockyards in a reasonably safe condition for that purpose, taking into consideration the Ordinary conditions attending cattle in that situation and their ordinary habits and propensities. We need not go into the question Whether or not the defendant was bound to keep its Stockyards so that cattle, however wild and unruly, could not get out, no matter how unusual their efforts. There Was substantial
evidence that these cattle were neither Wild nor unruly. There was no trouble in getting them into the yards, although it was dark When they put them in. As one WitneSS Said, Who seems to have had great experience with all sorts of cattle: “They did not appear to be a Wild bunch of cattle.” There Was also evidence from Which the jury could find that the yard fence was not reasonably Secure for the purpose of holding cattle under ordinary conditions. According to evidence introduced by plaintiff, some of the postS Were broken Off and others Were pushed over. Those that were broken were “well rotted”; that is, the outer ring or White of the post was rotten, leaving a small Core Or heart in the center. According to this testimony, also, most of the posts of the fences to the other stockyards along defendant's line-indeed, practically all of them— were six-inch posts, while these that were broken were four-inch posts. Without holding that it is necessary to show knowledge of a defective condition on the part of the defendant, or that the condition must have existed for a time long enough to have enabled defendant to have discovered it, We may go So far as to place the matter even upon the plane defendant insists upon, since there was evidence that just OutSide the fence, Where the break OcCurred, an old roadway had worn the ground down to a level lower than the ground of the Stockyards, and the rains had washed the dirt away from the outside of the posts. The Soil was a loose loam. This would sufficiently show that the yards were not reaSonably Secure, and also that it must have existed for SOme time, Since Such conditions Would not arise suddenly. It is true no One Can tell Whether the Cattle got to fighting or milling around and broke the fence. But cattle under ordinary COnditions Will Sometimes fight, and freQuently will get to milling around; and defendant's duty is to provide a yard that Will hold cattle under Ordinary ConditionS. We think there was ample evidence from which the jury could find that the yard was not reasonably Secure for the purpose for which it was intended. Defendant's Contention that a demurrer to the evidence should have been Sustained is therefore disallowed. [4,5] The trial court granted defendant a new trial as to the Second count, for the reason that plaintiff failed to show an assignment of the cause of action from the partnership to him, or from Burton, his partner, to him. We think the court did right in this also. There is no testimony in the record that there was ever any assignment of the cause of action to plaintiff. In testifying concerning the cattle, plaintiff spoke of the 84 head as belonging to him and the 120 head as still belonging to the partnership, consisting of himself and Burton.
His testimony further on shows that the title to the partnership cattle still remained in the partnership; he having merely a half interest in them. In speaking of the present OWnership of the cattle, plaintiff Said he individually OWned a portion and a half interest in the others, but that it had been agreed that he should bring the suit for the whole damage. In other words, there had been no transfer of any interest in the Cattle Or the claim, either orally or otherwise, but he had agreed to go ahead and Sue for the Whole thing. We admit the rule that no formal assignment is necessary, and that any act showing an intent to transfer a perSOn’s interest is Sufficient. Smith W. Sterritt; 24 Mo. 262; Sanguinett v. Webster, 153 Mo. 343, loc. cit. 370, 54 S. W. 563. But We have Searched the record in Vain to find any proof of any intention on the part of Burton to transfer his interest in the Cattle embraced in the second count, or his interest in this claim for damages. So far as the evidence shows, each partner now owns his interest therein, but One of them merely told the other to include the partnership claim in the Suit for the individual claim. If this be true, the Second count is not prosecuted in the name of the real party in interest. It may be, if the facts had been fully developed, and if the plaintiff had stated just what was done, the evidence would have shown an assignment of the cause of action. But as the record now is no assignment Seems to have been made. For this reason, We are of the Opinion the court did right in granting a new trial as to the second count. The judgment of the lower court is therefore affirmed as to both COuntS. All COncur.
WOODS V. MISSOURI PAC. RY. CO. (No. 11683.)
(Kansas City Court of Appeals. Missouri.
1. NEGLIGENCE (3:29—DUTY TO USE CARE. Though the failure of a railroad company to keep the gate of a stock pen in reasonably safe repair was negligence, it was not actionable negligence unless the company owed to the particular person injured thereby the duty to keep its stock pen and premises reasonably safe. [Ed. Note.—For other cases, see Negligence, Cent. Dig. $41; Dec. Dig. 3:29.]
2. NEGLIGENCE Q->32-INJURIES TO INVITEE.
Where a railroad company maintained stockyards and pens for the purpose of receiving live stock intended for shipment, and a shipper who had arranged to ship live stock purchased live stock from plaintiff and contracted with plaintiff to deliver the stock in the stockyards, and expressly directed plaintiff to put the stock in a particular pen, plaintiff in endeavoring to open the gate of such pen was not a trespasser nor a mere licensee, but an invitee to whom the railroad company owed the duty of observing ordinary care, as he was not on its premises solely on his own business, nor merely for his own pleasure, curiosity, or benefit, and the company in maintaining the stockyards in
vited not only shippers, but all whom they might have deliver stock for them, to enter the stockyards for the purpose of making shipments. [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 42—44; Dec. Dig. Q:32.]
3. JUDGMENT ©->570 – CoNCLUSIVENEss — ‘‘JUDGMENT OF NONSUIT.’’
- Under Rev. St. 1909, § 1900, providing that if an action shall have been commenced, and plaintiff suffers a nonsuit, he may commence a new action within a certain time, where a demurrer to plaintiff's evidence was sustained, whereupon plaintiff took an involuntary nonsuit with leave to move to set it aside, and such motion was overruled and the trial court's action approved on appeal, the judgment did not bar a new action in which the testimony lacking in the first case was supplied, as a “judgment of nonsuit” is a complete determination of the Suit, but not an adjudication of the merits of the controversy.
TRIMBLE, J. Plaintiff, in attempting to Open a gate leading into one of the pens in defendant's stockyards at its shipping station of Foster, Mo., was seriously and painfully injured by the gate falling upon him. He brought this Suit for damages. The petition charged that defendant had allowed the gatepost to remain in a rotten condition, whereby the top hinge became loose, rendering the gate dangerous and unsafe, which defendant knew, or of which it could have known by the exercise of ordinary care, and which gate defendant WaS in duty bound to keep in reasonably safe repair. A trial resulted in a verdict and judgment for plaintiff, and defendant has appealed.
The record discloses Substantial evidence from which the jury could find that, on account of the decayed condition of the gatepost at the place where the top hinge had been fastened, the same had become loose and the gate was liable to fall over upon any one who attempted to open it without knowledge of its defect; that the gate, when closed, was in proper position and gave no indication of its insecurity; that the loose hinge was on the inside of the pen and plaintiff approached the gate from the outside, and hence the condition of the hinge was not observable to him and he had no knowledge of the defect; that this condition Was known to defendant for a sufficient length of time to have enabled it, in the exercise of ordinary care and reasonable dispatch, to have repaired the gate long before the injury occurred. Consequently neglect on the part of defendant was shown, and there is no room for holding, as matter of law, that plaintiff was guilty of contributory negligence.  It is insisted, however, that plaintiff Sustained no relation Whatever to defendant, save, perhaps, that of a mere licensee, and hence defendant owed no duty to plaintiff to keep its shipping premises and facilities in repair, but only the duty to refrain from wantonly injuring him. The evidence and the verdict unquestionably show that defendant omitted to keep the gate in reasonably safe repair. While this was negligent, yet it would not, in this case, constitute actionable negligence unless defendant OWed to this particular plaintiff the duty of keeping its stock pen and premises reasonably safe. The question whether or not defendant owed this duty to plaintiff depends upon whether the “circumstances justly demand” that defendant observe care for plaintiff’s safety.  As disclosed by the record and found by the verdict, those circumstances were these: Defendant maintained the Stockyards and pens therein for the purpose of receiving live stock intended for shipment over its road. A Mr. Smith, who was engaged in buying up cattle and hogs and shipping them over said road, had arranged for a car to ship some live stock from Foster to Kansas City. A part of the live stock intended for this shipment had been purchased by him of the plaintiff, and plaintiff was to deliver said Stock in the Stockyards, from whence Smith was intending to ship it. It was in opening the gate into the stock pen for the purpose of making this delivery that the plaintiff was injured. The stock thus delivered by plaintiff was received therein by Smith and was actually shipped out that day over defendant's road pursuant to the arrangement made with the agent for the car as hereinbefore stated. Smith, the shipper, was there On the ground to receive the stock in the pens and to attend to the immediate shipment thereof Over defendant's line. Plaintiff Was expressly directed by Smith to put the Stock in the particular pen the gate to which plaintiff was endeavoring to open when he got hurt. From this it can be readily seen that plaintiff was not on defendant's premises solely on his own business, or merely for his own pleasure, curiosity, or benefit. The placing of the Stock in the pen was a matter in which all three of them, plaintiff, Smith, and the defendant, had an interest. The facilities of the yards were extended to Smith as a shipper, and he was invited and expected to use them. In order for him to ship over defendant's road, he must have the stock in the defendant's Shipping pen. Instead of driving the stock there himself, he stipulated with the one from Whom he purchased that he should do that for him. The delivery of the Stock in the pens Was a
necessary preliminary to defendant's business as a carrier thereof and of its deriving profit therefrom. In maintaining the stockyards, defendant impliedly invited Smith, the shipper, and all whom he might succeed in getting to do such preliminaries for him, to enter said stockyar&s for the purpose of Such Shipments. Plaintiff was not a trespasser, nor did he enter the stockyards purely and solely for his own interest, profit, or pleasure. There was an interest Or adVantage accruing to Smith, plaintiff, and the railroad in the stock being placed in the pen. And this fact of common interest or advantage is what distinguishes plaintiff's position, making it that of an invitee rather than a mere licensee. Bennett v. Rail'oad Co., 102 U. S. 577, loc. cit. 584, 585, 26 L. Ed. 235; Archer v. Union Pacific R. Co., 110 Mo. App. 349, loc. cit. 353, 85 S. W. 934. The Stockyards Were maintained for the benefit of defendant's carrying business, and plaintiff's coming there was connected with that business, and that made him an invitee. 29 Cyc. 455; Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478, loc. cit. 480; Plummer V. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Parker V. Portland Pub. Co., 69 Me. 173, loc. cit. 176, 31 Am. Rep. 262; Bennett v. Railroad Co., 102 U. S. 577, 26 L. Ed. 235; Carr V. MO. Pac. R. Co., 195 MO. 214, loc. cit. 225, 92 S. W. 874; Woods v. Missouri Pac. R. Co., 149 Mo. App. 507, loc. cit. 510, 130 S. W. 1123. If plaintiff was an invitee, then the defendant owed him the duty to observe ordinary care that he does not receive injury. Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; O'Donnell v. Patton, 117 Mo. 13, 22 S. W. 903; Welch V. McAllister, 15 Mo. App. 492; Archer v. Union Pacific R. Co., supra; Brock v. St. Louis Transit Co., 107 Mo. App. 109, loc. cit. 116, 81 S. W. 219. Plaintiff, in putting the stock in the pen, was performing a part of his contract with Smith, it is true; . but he was also doing more. He was performing one of the things necessary to be done in carrying out Smith's contract with the railroad, one of the necessary preliminaries to the defendant's business of carriage, and he was making that use of defendant's premises for which they were built and maintained, and clearly there Was an implied invitation to him to use the stockyards for that purpose. To say that, merely because: plaintiff himself Was not intending to Ship, he Was a bare licensee and not an invitee, is to place a far too narrow limitation upon. the rights of those who, at the direction of the Shipper, assist him in using the yards for a purpose beneficial to the defendant.  A former action for the same injury was instituted by plaintiff prior to the bringing of this suit. In that action a trial was entered into, but at the close of plaintiff's. evidence the trial court sustained a demurrer thereto, Whereupon plaintiff took an in
voluntary nonsuit With leave to move to Set the same aside. This motion was filed and overruled. Whereupon plaintiff appealed to this court, where the action of the trial court Was approved. Woods v. Missouri Pacific R. Co., 149 Mo. App. 507, 130 S. W. 1123. Plaintiff at Once instituted this Suit, and, at the trial, supplied the testimony which this court had held was lacking in the former case. Defendant cOntends that the present suit cannot now be maintained, since the cause of action, by reason of our former judgment, has become res adjudicata. But it Will be noticed that in the former suit there was no adjudication of the case upon its merits. The plaintiff suffered an involuntary “nonsuit,” which was, in effect, a dismissal of his case. The ground of the judgment in the former Suit Was not that plaintiff had no cause of action, but that he had not brought forward sufficient proof to establish that cause of action. Section 1900, R. S. Mo. 1909, provides that if an action shall have been commenced and plaintiff Suffer a nOnSuit he may commence a new action Within a certain time. In MaSOn V. Kansas City, etc., R. Co., 226 Mo. 212, 125 'S. W. 1128, 26 L. R. A. (N. S.) 914, it Was held that the judgment of the lower Court refusing to set aside an involuntary nonsuit was, merely a judgment of involuntary nonSuit and not a final judgment upon the merits of the cause. It was also held, construing Chouteau V. Rowse, 90 Mo. 191, 2 S. W. 209, that an appeal from the Order Overruling the motion to Set aside the nonSuit SuSpended the judgment of dismissal until the case Was determined in the appellate COurt, and that plaintiff, under the statute, could begin another suit within One year thereafter. In other Words, the appeal by plaintiff from the Order refusing to set aside the involuntary nonsuit was merely a litigation of the correctness of the trial court's ruling On that point, and the judgment Of affirmance in the appellate court Went no further than did the Order of the trial court. That Order did not finally adjudicate the CauSe Of action, but Only dismissed plaintiff's suit. A judgment of nonsuit is a complete determination of the Suit, but not, an adjudication of the merits of the controversy. Wiethaupt v. St. Louis, 158 Mo. 655, 59 S.W. 960; Manning V. Conn. Mut. Fire InS. Co., 176 MO. App. 678, 159 S. W. 750. In Hewitt v. Steele, 136 Mo. 327, 38 S. W. 82, plaintiff in a former Suit, after Suffering an involuntary nOnSuit, appealed from the Order refusing to Set it aside, and the action of the trial Court Was affirmed. Defendant pleaded res adjudicata, but that plea Was disallowed, although the case Was reversed upon another ground, namely, because there was “no Substantial evidence to Support plaintiff’s cause of action.” In view of the foregoing, We are Of the Opinion that plaintiff's cause
of action did not become res adjudicata by reaSOn Of the former Suit. The case of Johnson V. United RailWays Co., 243 Mo. 278, 147 S. W. 1077, does not announce a different rule. The judgment of the trial court in the former Suit therein referred to Was leveled at the petition as Stating no cause of action, and that judgment was upheld on appeal. The petition in the Second Suit Stated the Same factS. It differed from the first petition only in that it prayed for an accounting, while the first petition, in addition to praying for an acCOunting, asked for an injunction and for a rescission. The cause of action for an acCounting being in both petitions, and, the facts being the same in both petitions, of COurSe an adjudication. On the first that it stated no cause of action was an adjudication of the question. Whether or not the SecOnd Stated a cause. But that is not the situation in the case at bar. Neither in the first nor in the second cases in this contrOVerSy Was there any issue over the Sufficiency of the petition, and the adjudication in the first case did not extend to the cause Of action itself, but only to the judgment of nonsuit for an insufficiency of proof. The claim that plaintiff's instruction No. 1 is erroneous is Without merit. The judgment is affirmed. All concur.
GUFFEY v. HARVEY et al. (No. 11645.)
(Kansas City Court of Appeals. Missouri.
1. STREET RAILROADs &s114—ACTIONS FoR INJURIES - WEIGHT AND SUFFICIENCY OF EVIDENCE. In an action for injuries to a person struck by a street car, evidence held to show that he either failed to look before turning to drive across street car tracks, parallel with the direction in which he was driving, or that he took a dangerous and entirely unnecessary chance and drove into a zone of apparent danger. [Ed. Note.—For other cases, see Street Rail#. Cent. Dig. §§ 239-250; Dec. Dig. Q:
2. STREET RAILROADS @:110—ACTIONS FOR INJURIES—PLEADING—ISSUES.
In an action for injuries to a person struck by a street car, the petition alleged that, when plaintiff was crossing the tracks, and while his horse and wagon were entering thereon, those in charge of the car could see him and the horse and wagon, or by the exercise of Ordirary care could have seen them, in time to have avoided the collision, but that they so negligently conducted themselves in the management of the car and in permitting and causing it to be propelled at an excessive rate of speed, and in failing to slow down as required by a “slow” signal, and in failing to ring the bell or give any signal of the car's approach, that the wagon was struck, and plaintiff injured, and that, as a direct result of such negligent acts, plaintiff was knocked off of the wagon. Held, that this did not charge negligence under the humanitarian or last chance doctrine, but, construing the averment that those in charge of