Connelly v. Illinois Central Railroad

166 S.W. 1077, 183 Mo. App. 408, 1914 Mo. App. LEXIS 495

• Court: Missouri Court of Appeals
• Decided: May 5, 1914
• Status: Published

Opinion

REYNOLDS, P. J.

This is the fourth appearance of this case in our court on appeal. Its history and the various incidents connected with it will be found reported, first, under the caption Connelly, Respondent, v. Illinois Central Railroad Co., Appellant; Southern Railway Company and Mobile & Ohio Railroad Company, Defendants, 120 Mo. App. 652, 97 S. W. 616, the judgment then rendered against the Illinois Central Railroad Company being reversed and the cause remanded. Its second appearance is under the title Connelly, Appellant, v. Illinois Central Railroad Company, Respondent, 133 Mo. App. 310, 113 S. W. 233. The plaintiff having appealed from a judgment' against it and in favor of the railroad company, that judgment was reversed and the cause again remanded. Its third appearance is under the title of Connelly, Respondent, v. Illinois Central Railroad Company et al., Defendants, Southern Railway Company, Appellant, and it will be found in 169 Mo. App. 272, 153 S. W. 79, coming before us on an appeal by the Southern Railway Company from a judgment against it and in favor of the plaintiff. That judgment was reversed and the cause again remanded. On its return to the circuit court it was tried against the Illinois Central Railroad Company alone and resulted in a verdict against it, judgment being entered up in favor of the other two defendants, who had before then been discharged from the case. It is from this last judgment against it that the Illinois Central Eailroad Company has brought the present appeal.

The case in its several trials proceeded upon the theory that .each of the carriers was liable only for loss occurring on its own line and while the goods were in the possession of that line, and was founded on the liability of each as carriers at common law. [See Connelly v. Illinois Central Railroad Company, 133 Mo. App. 310, l. c. 313.] In the ease now before us the other two companies having disappeared from the case, right of recovery is sought against the Illinois Central alone. That right must turn upon the question as to whether the damage to the goods, and as to the fact of damage there is no controversy whetever, occurred while the goods were in charge of the Illinois Central Eailroad Company, in transit over its line from Jackson to Winona, Mississippi, or before delivery by it to the Southern Railway Company, the intermediate carrier between the Illinois Central, the initial carrier, and the Mobile & Ohio Railroad Company, the final carrier, at Winona.

The law applicable to the case is so clearly stated in 133 Mo. App., supra, that we do not consider it necessary to enlarge on it to any extent. Referring to the opinion in that case (l. c. 316), we there said: “To our minds the weight of evidence shows the damage was done after the furniture was received by the Southern Company and while in its custody, as the jury found.” Following tins, however, we said (l. c. 316): “B¡ut the witnesses who testified to those facts were introduced by respondent [appellant here] and appellant [respondent here] was not bound by their testimony. Neither was the jury bound to believe them if their manner on the stand discredited them, or if the evidence as a whole would support another inference. ’ ’

At the trial of the case at bar the testimony was practically as set out in 133 Mo. App., supra, and we refer to that for the facts. At the present trial plaintiff introduced further evidence tending to show that while the car was in the possession of this defendant, it had been opened and entered by a couple of the employees of defendant, for the purpose of removing from the car certain articles which had been loaded in that car by mistake, and that to do this they had pulled down part of the furniture and goods of plaintiff, under and among which these articles had been loaded. The testimony did not show how this 'had been done, or that the goods of plaintiff had been properly replaced after being disturbed. There was also evidence to the effect that no rails or braces or bars of any kind had been in place to hold the goods of plaintiff, and there was opinion evidence that the presence of bars or braces would have prevented the shifting of the load, which occupied but one-half of the car. In the presence of this evidence we cannot hold, as a matter of law, that the court should have instructed the jury that plaintiff could not recover against this defendant. Even if we may think that the weight of the testimony is in favor of appellant, that was for the determination of the trial court and we. are concluded by his finding as to that. So we hold that there was no error in refusing demurrers to the evidence, or in giving the instructions asked by plaintiff, which proceed on the theory that there was evidence, which, if believed by the jury, entitled plaintiff to recover. We hold that there was evidence in the case from which the jury was warranted in inferring that the damage to the goods had occurred while they were in the possession and under the control of the appellant company. This is the only criticism aimed at those instructions.

It is strenuously argued that the court erred in admitting what is called “opinion evidence,” that is the testimony above referred to of two or more witnesses, to the effect that means could have been taken to have braced this furniture in the car and that if that had been done it could not have been in the position in which it was found, scattered over the floor, broken and damaged. It is true that this was opinion evidence, but it was given by experienced railroad men, the result of their own observation, and we see no error in permitting it to go to the jury for what it was worth. Our court commented on this same line of .testimony in Connelly v. Illinois Central Railroad Co., 133 Mo. App., supra, l. c. 317, as some evidence from which the jury might determine whether the. furniture had been so loaded as to bear transportation.

Error is assigned to the remarks of counsel for respondent in his closing address to the jury. It is true that that counsel was interrupted by counsel for appellant and his statements challenged, but we find no mention in the record of any rulings of the court, or of any exceptions saved, either to the action or nonaction of the court.

Upon consideration of the case we find no reversible error in the record or proceedings. The verdict was for $500 and there is no claim that it is excessive. In point of fact it is very much within the testimony as to the amount of damage sustained by plaintiff in the loss of his goods. We see no legal ground upon which we can reverse or disturb the judgment in this case. That judgment is affirmed.

Nortoni and Allen, JJ., concur.