Clark v. Chicago & Alton Railway Co.

GOODE, J. Eespondent- was injured while in the appellant’s service by being hurled from a handcar on which he was riding along appellant’s railway to his work. The handcar ran off the rails while rounding a sharp curve, precipitating the respondent headforemost down an embankment and thus stunning and otherwise hurting him. [458] Among the assignments of negligence are the following i “Plaintiff says that said handcar on which he was being carried over said track was old, defective and worn, and out of repair, and that the rails in said track at said point were worn and out of repair and were too small for use on curves, especially a short curve like the one where said handcar was-derailed.” At the conclusion of the plaintiff’s case a peremptory instruction in the nature of a demurrer to the evidence was presented to the circuit court and refused, and the only assignment of error on the appeal is that the court therein committed error. Appellant did not stand on its demurrer to the testimony introduced by the respondent, but as its abstract states: “Introduced evidence tending to sustain all the issues, contentions- and defenses on its part,” enumerating them. At the conclusion of the testimony, the court gave five-instructions at the request of the plaintiff and seven at the-request of the defendant, which amply and satisfactorily covered every phase of the case and no point is made about them-here. . In our judgment there was sufficient evidence to be submitted to the jury on the issue of whether the rails of appellant’s track, on the outside of the curve where the handcar-ran off, were too worn to be safely used; but- if we were of the opposite opinion from the evidence preserved in the abstract of the record, we would be bound to overrule appellant’s assignment of error committed in refusing to grant a peremptory instruction in its favor at- the conclusion of plaintiff’s case, because it neither stood on the demurrer, nor has stated the testimony in its abstract so we may review it. Granting that the. plaintiff was not entitled to go to the jury when he closed his case, for aught we know, he may have been materially helped by the testimony of the witnesses brought forward by the appellant. “By putting in its own evidence, de [459] fendant thereby waived its exception in this behalf (namely, the refusal to sustain a demurrer to plaintiffs testimony), except that the court may consider the same in connection with all the evidence in the case.” McPherson v. St. L. & I. M. R’y Co., 97 Mo. 253. Appellant has not brought up all the evidence in the case, but has only stated what a part of it tended to prove — has not even preserved ,the substance of it in the abstract of the record, and this fact precludes us from passing on whether it was sufficient to support the verdict. Davis v. Vories, 141 Mo. 234; Ogelbay v. College of Dental Surgery, 71 Mo. App. (K. C.) 339. The judgment is affirmed. Bland, P. J., and Barclay} J., concur.