the action of the trial court in refusing to, mony, and therefore it would have been imgive a requested instruction directing a ver- proper for the court to have directed a verdict for the defendant. The first proposition dict for the defendant. submitted under that assignment is that when a shipment of live stock is transported with ordinary care, and with reasonable diligence, if the live stock sustains injuries, it will be attributable solely to the inherent nature or proper vice of the animals, and not chargeable to the carrier. The undisputed The undisputed proof shows that some of the animals shipped died before the shipment reached its destination, and that others were seriously injured when they were delivered to the consignee at Copperas Cove.

[1] The plaintiff produced one witness, a Mr. Hunnicutt, who purchased the cattle in Ft. Worth and had them shipped, and he testified that while they were not fat, but thin, they were in reasonably good condition, and, in his opinion, could have made the trip from Ft. Worth to Copperas Cove without injury, if they were properly handled and cared for. The defendant introduced three witnesses who inspected the cattle and loaded them on the train at Ft. Worth, who gave testimony to the contrary of that given by Mr. Hunnicutt, and stated that the cattle were very poor and thin; that some of them fell down while being loaded and had to be helped up; and that the entire lot was not fit for shipment.

Defendant also introduced the testimony of all the trainmen who handled the shipment from Ft. Worth to Copperas Cove, and that each and all testified that the shipment was carefully handled while in their control. If when the cattle were delivered to the defendant, they were in the condition described by Mr. Hunnicutt, they were not in the bad condition described by the defendant's witnesses, and therefore, as the undisputed proof shows that they were in a very bad condition and seriously injured when they reached their destination, the jury had the right to conclude that such injuries were caused by improper handling en route. This shows that there was conflict in the testi

[2, 3] Appellant's other proposition is that, as it was shown by the great preponderance of the evidence that the cows when delivered to it were in a weak, thin, and emaciated condition, and that it was guilty of no negligence in handling the shipment, it was entitled to an instructed verdict. That proposition is contrary to the law as established by decisions of our Supreme Court.

It has often been held that wherever there is conflict in the testimony, it is the duty of the trial court to submit the case to the jury. This is the law as established by the decisions of our Supreme Court, although the same court has frequently said that, in considering a motion for new trial, it is the duty of a trial judge to set aside the verdict when, in his opinion, it is contrary to the great preponderance of the testimony. But that rule does not affect the primary right to have the case submitted to a jury. The same court, and other appellate courts, have held that a different rule prevails when an appellate court is asked to set aside a verdict where the record shows conflicting testimony; and it is generally held that such relief will not be granted, unless it appears that the verdict is so contrary to the overwhelming weight of the testimony as to indicate that the jury was influenced by some improper motive, or that gross injustice has been done. We are not called upon to determine whether or not this case belongs in that class, because no assignment of error has been presented complaining of the action of the trial court in refusing to set the verdict aside.

Some other questions are presented in appellant's brief, and have received due consideration at the hands of this court, with the result that all of them are decided against appellant.

No reversible error has been assigned, and the judgment is affirmed.

Affirmed.

In action on note, defendant's answer pleading fraud and failure of consideration, although disclosing facts showing good cause of action to have note canceled, is not a set-off or counterclaim, where such facts are pleaded merely as a defense.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Set-Off; Counterclaim.]

2. DISMISSAL AND NONSUIT 19(1)-STATUTORY PROVISIONS-RIGHTS OF DEFENDANTS. Where plaintiff dismissed action under Rev. St. 1909, §8 1979, 1980, authorizing him so to do, section 1878, providing that dismissal of plaintiff's action shall not dismiss set-off or counterclaim, does not entitle defendant to have cause reinstated where answer did not interpose set-off or counterclaim, although facts alleged therein did show right to affirmative relief if properly pleaded and demanded.

his case at any time before it is finally submitted, and by section 1979 he may dismiss his case in vacation upon the payment of costs. By section 1878, R. S. Mo. 1909, it is provided that, where "a set-off or counterclaim shall be filed" by the defendant, the dismissal or any other discontinuance of the plaintiff's action "shall not operate to dismiss or discontinue such set-off or counterclaim."

[2] Prior to the enactment of said lastnamed section, our Supreme Court construed the other two statutes as giving a plaintiff, except in certain special proceedings, the absolute and unconditional right to dismiss or take a nonsuit at any time before final submission. Atkinson v. Carter, 101 Mo. App. 477, 485, 74 S. W. 502. And this was so even in cases where a true set-off or counterclaim had been filed. Lanyon v. Chesney, 209 Mo. 1, 7, 106 S. W. 522. At page 8 of 209 Mo., at page 524 of 106 S. W.

Appeal from Circuit Court, Cooper Coun- of this last decision, the opinion in the Atkinty; Jack G. Slate, Judge.

"Not to be officially published." Action by Fred G. Smith against W. A Hurt. From an order overruling defendant's motion to have cause reinstated after plaintiff had dismissed his suit, defendant appeals. Affirmed.

John Cosgrove, of Boonville, for appellant. Cliff Langsdale, of Kansas City, for respondent.

TRIMBLE, J. This is an action brought to the May, 1917, term of the Cooper county circuit court, upon a promissory note executed and delivered by defendant to one C. G. Safford, and by him assigned to plaintiff. The answer pleaded that the note was obtained by fraud and deceit, that it was without consideration, and that plaintiff took said note with notice. Plaintiff dismissed his suit, and afterward defendant filed a motion to have the cause reinstated and the issues set up in the answer tried and determined. The court overruled this motion, whereupon defendant appealed.

[1] There is no set-off or counterclaim contained in defendant's answer. It alleged facts which, if true, would have shown that defendant was entitled to bring a suit for the cancellation of said note in a case where that right was properly stated and such relief demanded; or, in other words, the answer may be regarded as disclosing that defendant had grounds whereon he could have maintained a separate action for the cancellation of the note described by plaintiff's petition. But, strictly speaking, the matter pleaded by the answer shows that plaintiff never had a cause of action, and the answer was therefore nothing more than a mere defense. By section 1980, R. S. Mo. 1909, plaintiff is given the right to dismiss

son Case was quoted with approval, holding that the enactment of said section 1878 did plaintiff to dismiss, and holding further that not modify, qualify, or abridge the right of a "the rule prevails in this state that in all ordinary actions at law or in equity the plaintiff has the right before final submission to dismiss his suit or take a nonsuit, irrespective of the fact that matters are pleaded in the answer which would entitle the defendant to affirmative relief and for which he might maintain a separate action against the plaintiff" (italics ours); but that such dismissal would not "affect defendants' right to prosecute any set-off or counterclaim they might have pleaded in their answer before the dismissal of the suit." And then on page 9 of 209 Mo., on page 524 of 106 S. W.. of said Lanyon Case the court said: "Matter which is merely pleaded as a defense, or which shows that plaintiff never had a cause of action, cannot be said to be either a setoff or counterclaim."

We think this is strikingly applicable to the defense pleaded herein, and that the answer is not a counterclaim, nor can it be construed as in the nature of one. The answer constituted nothing more than a defense. Indeed, the motion to "reinstate the cause" impliedly admits this, for if the defendant's answer was enough in the nature of a counterclaim as to be sufficient whereon to maintain an independent suit against the plaintiff (as it must in order to partake of the nature of a counterclaim), then defendant did not need to have plaintiff's cause of action reinstated, but should have merely asked to be allowed to proceed with his case. This would seem to be the procedure in the case of a strict counterclaim, for even in such case the plaintiff's right to dismiss his cause of action cannot be denied. It is manifest that, with plaintiff's

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-40

petition gone, the answer was not sufficient way so as to facilitate the mowing of weeds to maintain a suit in defendant's behalf.

It may be that the general rule in force in other states, which prevents a plaintiff from thus depriving a defendant who has set up new matter upon which he might have maintained a separate action of the right to a trial of his cause, would be the better rule; but it is not in force in our state except in the case of a set-off or counterclaim specified in section 1878. Atkinson v. Carter, supra. Lanyon v. Chesney, supra. The defendant's answer does not come within the purview of that section.

Hence the judgment of the trial court is affirmed. All concur.

thereon, negligently took some barbed wire fencing which was then on the right of way, and threw it on plaintiff's lot, where grass and weeds had grown up, so that the said barbed wire was concealed from ordinary observation and in such condition as to be dangerous to persons who might be walking in that locality, and negligently allowed it to remain there until she got hurt as aforesaid. The answer was a general denial, and upon a hearing of the issues involved, the jury returned a verdict in plaintiff's favor for $500 and defendant has appealed.

[1] The first and most vital contention is that there was no evidence to sustain the verdict, and that the instruction in the nature of a demurrer to the evidence should have been sustained. If this be true, then

GILLELAND v. QUINCY, O. & K. C. R. CO. there will be no need to consider the point

(No. 12864.)

(Kansas City Court of Appeals. Missouri. May 20, 1918.)

1. APPEAL AND ERROR 927(5)-DEMURRER TO EVIDENCE-PRESUMPTIONS.

On appeal, in considering efficacy of defend ant's demurrer to the evidence, plaintiff's evidence must be accepted as true, and accorded all reasonable inferences.

2. RAILROADS 114(2)-RIGHTS OF WAYBARBED WIRE-EVIDENCE.

Evidence held to warrant recovery by property owner injured by barbed wire thrown from railroad right of way upon her land. 3. DAMAGES 26-INJURIES TO PERSONSFUTURE SUFFERINGS.

Where, at time of trial, plaintiff, who contracted blood poisoning from barbed wire thrown on her land by section hands, still suffered and could not work, she could recover for future suffering and loss of time and earnings..

that plaintiff's instructions 1 and 2 are erroneous. It is elementary that in considering the efficacy of defendant's demurrer to the evidence, we must accept as true the evidence offered by, plaintiff, and give her the benefit of every reasonable inference which the jury may rightfully draw therefrom. Of course, if that evidence be contrary to the common experience of mankind, or in conflict with well-known physical laws, we are not required to accept it, and in such case no inference favorable to the side offering such testimony can rightfully be drawn therefrom.

[2] We have carefully read and studied the evidence, and find that we are without warrant in saying there is no evidence tending to show that the defendant's section men did not place barbed wire on plaintiff's premises. It is true, plaintiff was unable to

Appeal from Circuit Court, Daviess Coun- name the exact time when she saw the men ty; Arch B. Davis, Judge.

"Not to be officially published." Action by Jennie Gilleland against the Quincy, Omaha & Kansas City Railroad Company. Judgment on verdict for plaintiff, and defendant appeals. Affirmed.

Dudley & Selby, of Gallatin, and J. G. Trimble, of Kansas City, for appellant. J. C. Leopard & Son, of Gallatin, for respondent.

taking down the wire from around the hogpen that had existed on the right of way. She says it was, she thinks, some time in the fore part of August and finally put it about the 14th of that month, but she re

peatedly said she did not know when it was; that she was not thinking of trouble over the matter at the time. The evidence does unquestionably show that July 31st the section men did take down the hogpen fence, and while defendant's evidence shows that it was smooth wire, yet there is evidence that there TRIMBLE, J. Plaintiff claims that while were two strands of barbed wire in the fence. she was walking in the grass and weeds on There is evidence also tending to show that a certain portion of her lot adjoining the the wire was carried around and fastened defendant's right of way, she became entan- loosely to the fence on the line of plaintiff's gled in some barbed wire concealed therein, premises, where it could easily have fallen and was thrown down, receiving a severe cut down and become lost to view in the weeds on the calf of her left leg, in which blood where plaintiff says it was, inside of her poisoning set up, infecting her system, seri- premises, and where she claims to have beously endangering her life, and permanently come entangled therein and injured. There injuring her. She brought suit for $20,000 was also evidence from which the jury could damages against the railroad, alleging that have found that the "old" barbed wire on defendant's section hands, in the discharge or near the abandoned wagon, which was of their duties in cleaning up said right of moved, was thrown, along with the other

rubbish, cans, etc., along plaintiff's fence. One witness Goode testified to barbed wire being in the fence, and that he saw the section men tearing the fence away and throwing the rubbish over against plaintiff's fence and some of it on her lot. He says he did not actually see any wire deposited there but that he was out near there a few moments before to get his ducks out of the pen, and noticed at that time that the wire was not there. He testified to afterwards seeing the wire stretched across the unfenced, alley east of and next to plaintiff's lot, and of speaking to the foreman about its being across the alley, and of the foreman's promise that "we will roll that up and get it out of the way." He also testified to seeing the wire afterwards still lying where he saw it, and that the grass and weeds next to the fence inside of plaintiff's lot were high, and had grown up some 18 inches or more. Plaintiff testified to becoming entangled in the wire in the grass and weeds inside of her premises. The question whether she got hurt at a point on the right of way, and south of the right of way fence forming the southern boundary of her lot, or whether it was north of said fence and in her garden, was an issue of fact for the jury to settle, as well as whether the section men placed the barbed wire there. The results of her cuts and the extent of her injuries may have been greatly exaggerated, and the failure of the place on her leg to heal may be from a varicosed vein, and not from a cut at all. But there is evidence tending to show that it was from the cut, and the jury is also the tribunal to determine that.

[3] The evidence also is to the effect that the wound would about heal up and then break out again worse than ever; that at the time of the trial it was still not healed, and that she was still suffering from it; and that she was not able to do her work as a dressmaker. In view of this, we do not think the court erred in instructing the jury as to future suffering and loss of time and earnings. However, appellant says that while it was error to thus instruct as to these future matters, yet "appellant does not ask a remand-it asks an absolute reversal."

It follows that we have no authority to disturb the finding of the jury which has received the sanction and approval of the trial court. It may be that defendant did not place any barbed wire on plaintiff's place, and that her "running sore" was in no wise caused by defendant's negligence, but we have no way of determining that absolutely, and were we to set aside the verdict, we might perhaps be doing as gross an injustice as defendant claims the verdict to be. If the jury has erred in its view of the evidence, there is no help for it, at least none from an appellate court.

The judgment is affirmed. All concur.

Among the requisites for granting new trial for newly discovered evidence are those that the evidence has first come to the knowledge of the losing party since the trial, and that he has used due diligence.

Appeal from Circuit Court, De Kalb Coun-
ty; Alonzo D. Burnes, Judge.

"Not to be officially published."
H. C. Clark was convicted of violating the
local option law, and appeals. Affirmed.

W. H. Haynes, of St. Joseph, for appel-
lant. Edward G. Robison and Covell R.
Hewitt, both of Maysville, for respondent.

BLAND, J. Defendant was convicted of violating the local option law, and he has appealed.

[1] The indictment charges that the defendant, a druggist, sold the liquor, while the proof shows that a clerk in his drug store sold it. For this reason defendant contends that there is a fatal variance between the indictment and the proof. This point is ruled against the defendant. State v. Durkem, 23 Mo. App. 387; Liberty v. Moran, 121 Mo. App. loc. cit. 687, 97 S. W. 948.

Defendant urges that the court erred in not granting a new trial on the ground of newly discovered evidence. The drug clerk was not a witness at the trial, but was in the state of Wyoming. The prosecuting witness testified that he bought the liquor from this clerk. Defendant in support of his motion for a new trial introduced the affidavit of the clerk, wherein it is stated that the clerk did not sell the liquor to the prosecuting witness. A counter affidavit was introduced by the state, wherein it was stated that defendant, 10 or 15 days before the term of court at which he was convicted, knew that the prosecuting witness would testify that the drug clerk sold him the whisky, that the defendant knew that the prosecuting witness had bought the whisky from the clerk, and for that reason defendant could beat the case.

[2, 3] The matter of granting or refusing a new trial on the ground of newly discovered evidence is largely in the discretion of the trial court. Among the requisites for granting a new trial on such ground is that the evidence must first have come to the knowledge of the losing party since the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

L

"Not to be officially published." [1] It is the contention of plaintiff that the Suit by the Kansas City Theological Sem-power of attorney as above set forth made inary against J. M. Kendrick. Demurrer to the defendant a trustee for the purpose of defendant's answer overruled, and plaintiff collecting from the public administrator the appeals. Affirmed.