Cox v. St. Louis, Memphis & Southeastern Railway Co.
Missouri Court of Appeals
Appeal from Butler Circuit Court. — Eon. J. C. Shepard, Judge. The court erred in giving instruction number two of its own motion, for the reason that it is a comment on the evidence, and ignores all the evidence except the evidence of Hawkins and Sullivan for defendant, and Cox for the plaintiff, and points out certain testimony, which the court should refrain from doing. Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 M'o. 92; McClure v. Ritchie, 30 Mo.
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Appeal from Butler Circuit Court. — Eon. J. C. Shepard, Judge. The court erred in giving instruction number two of its own motion, for the reason that it is a comment on the evidence, and ignores all the evidence except the evidence of Hawkins and Sullivan for defendant, and Cox for the plaintiff, and points out certain testimony, which the court should refrain from doing. Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 M'o. 92; McClure v. Ritchie, 30 Mo. App. 445; Copp v. Hardy, 32 Mo. App. 588; Mc-Fadin v. Catron, 120 Mo. 274. Statement. — The facts of this case are fully stated in the report…
1Opinion of the CourtGoode, J.
(after stating the facts — 1. As to the special plea in bar that the entry on plaintiff’s land and removal of the sand therefrom was by Dittenhoefer under a contract by which plaintiffs gave him the right to do so, suffice to say that there was no proof to sustain this defense. Sullivan swore the arrangement with Cox for sand was made in behalf of Dittenhoefer and not of the railway company; but there is no testimony that Dittenhoefer removed the sand in controversy. The evidence on that issue shows without conflict that the railway company took or was a party, at least, to the taking of the…
2Cases cited12 opinions
- Bains v. BullockSupreme Court of Missouri · 1895
- Gray v. DrydenSupreme Court of Missouri · 1883
- Walther v. WarnerSupreme Court of Missouri · 1858
- Henry v. LoweSupreme Court of Missouri · 1880
- Arnold v. WillisSupreme Court of Missouri · 1895
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3Cited by3 opinions
- Heitz v. SayersSuperior Court of Delaware · 1923
- Chilton v. Missouri Lumber & Mining Co.Missouri Court of Appeals · 1910
- Dennis v. WoolseyMissouri Court of Appeals · 1925