Ward v. Steffen

GOODE, J. Appellant’s exception to the refusal to direct a verdict for him must be overruled. There was substantial evidence tending to establish a negligent act by him in leaving his team unhitched and unwatehed at a place where they were likely to be scared. While it may be conceded they were provoked to run by Bowser’s violent whipping of his horse, and the noise of the frightened geese, may be, the stampede or the resulting damage would not have occurred if they had been hitched or in charge of some person. Horses often run away when unhitched from an alarm which will only cause them to be restless or to tug at the halter without escaping, if they are tied. The instructions fairly offered the different positions of the respective parties to the jury for their decision as to which was right. The testimony for the plaintiff made [576] a prima facie case. Dougherty v Railway Co., 9 Mo. App. 478; Hill v. Scott, 38 Mo. App. 370; McManamee v. Railway Co., 135 Mo. 440, 449; Trans. Co. v. Downes, 11 Wall. (U. S.) 129. Whether it was successfully rebutted by the defendant was for the jury to say. Gannon v. Laclede Gas Light Co., 145 Mo. 502. II. Appellant’s complaint of the instruction, that the finding should be for the plaintiff unless the defendant had shown by a preponderance of the evidence that he was not guilty of any negligence or carelessness in permitting his team to escape, must be disregarded because the bill of exceptions states he requested it. We shall pay no attention to the certificate of the clerk de hors the transcript that plaintiff asked it. We determine appeals by the record. Allen v. Claybrook, 58 Mo. 124; Stegman v. Berryhill, 72 Mo. 307; State v. Vaughan, 141 Mo. 514. III. There is no merit in the criticism of the direction concerning the measure of damages for permitting the jury to take into consideration plaintiffs condition in life as shown by the evidence. Russell v. Columbia, 74 Mo. 480; Thomas v. Railway Co., 20 Mo. App. 485; Mitchel v. Plattsburg, 33 Mo. App. 555; Smith v. Butler, 48 Mo. App. 663. The judgment is affirmed, all concurring.