Sowders v. St. Louis & San Francisco Railroad Co.

Decision Date23 September 1907
Citation104 S.W. 1122,127 Mo.App. 119
PartiesSOWDERS, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY and ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellants
CourtMissouri Court of Appeals

Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

L. F Parker and Moses Whybark for appellants.

(1) It is the place where the animal gets on the track and not the place where it is injured or killed, that determines the liability; and the testimony fixes only one point of the animal's entry, and that was at the public crossing. Bumpas v. Railroad, 103 Mo.App. 206; Dickinson v. Railroad, 103 Mo.App. 335; Redmond v Railroad, 104 Mo.App. 555; Kimball v. Railroad, 99 Mo.App. 340; Wier v. Railroad, 48 Mo. 558. (2) The evidence that the cow was struck elsewhere than on the crossing, or that she entered upon the railroad through the fence, or over the cattle-guard, is so vague as to be nothing more than conjecture. Hess v. Railroad, 36 Mo.App 163; Reed v. Railroad, 112 Mo.App. 575. (3) If instructions given fairly cover the issues in a case, a failure to give a particular instruction is not error, in the absence of a request. If a party desires to have all grounds specifically instructed on, he must announce them, or he will not be heard to complain. And this is the extent the cases in Missouri bearing on the question have gone. Bindbeautal v. Railroad, 43 Mo.App. 463; Mitchell v. Bradstreet Co., 116 Mo. 226; Coleman v. Drane, 116 Mo. 387; Nolan v. Johns, 126 Mo. 159; Browning v. Railroad, 124 Mo. 55; Boettger v. Iron Co., 124 Mo. 87; Tetherow v. Railroad, 98 Mo. 74.

J. V. Conran for respondent.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

--The defendant appeals from a judgment against it under the double damage act (sec. 1105, R. S. 1899), for having killed plaintiff's cow, which, it is alleged, came upon defendant's track by reason of its failure and neglect to erect and maintain sufficient fences and cattle-guards as required by the statute mentioned. It appears from the evidence on the theory of plaintiff, that his cow passed from the public road over or through defendant's cattle-guard adjacent thereto, and inside of the railroad right of way just north of the public road crossing; that while so inside the right of way, defendant's locomotive and train south-bound collided therewith at a point about twenty feet north of the cattle-guard, by the force of which collision the cow was thrown to the southward over the cattle-guard, falling in the public road between the rails of its track, and about the third railroad tie south of the cattle-guard, at which point within the public road, the cow was mangled beneath the locomotive and dragged about one hundred and eighty yards to the south, where the train was stopped and the carcass removed.

Defendant's theory of the case is that the cow was lying upon its track at the crossing of the public highway when the collision occurred, and it is not liable therefor under the double damage act, as it is neither permitted nor required to fence its tracks across the public highway. [Accord v. Railroad, 113 Mo.App. 84, 87 S.W. 547.] Several witnesses testified on the part of plaintiff that the cattle-guard was not sufficient, as required by the statute supra, to prevent cattle from passing from the public highway over the same into the railroad right of way. The cattle-guard consisted of an excavation under the track with rails or crossbars lengthwise of the track across the same. This excavation had been permitted to fill nearly or almost to the top by the accumulation of dirt and gravel therein, so that cattle could, and as was shown, had been in the habit of walking over the same, notwithstanding the crossbars or slats mentioned. A small boy testified that he saw the plaintiff's cow pass over the cattle-guard. No one gave evidence in the case who actually saw the collision. Several for the plaintiff testified that while there was apparent no blood or hair inside the right of way where the locomotive is alleged to have run upon the cow, the stones or ballast on the track about twenty feet north of the cattle-guard was torn up and disarranged, indicating that as the point of collision. One witness said: "It looked like the locomotive run under her and into her feet and tore up the rock. . . . Yes, sir; she was struck inside of the right of way. It was plain to be seen. She was pitched on the road crossing from the cattle-guard, on the third tie after it went over the cattle-guard." And it was also shown there was cow's hair resembling that of the cow in question, on the slats or bars of the cattle-guard, indicating the cow had been dragged across the same to a point in the public road, where, in the language of one of the witnesses, she was first dumped. One witness testified:

"Q. I will ask you where she was killed, Mr. Ward? A. She was struck north of the crossing, about twenty feet from the cattle-guard in the right of way.

"Q. Inside the right of way? A. Yes, sir, that is as near as the signs was; you could see where she was struck; she was dumped--the first place she was dumped was the third tie outside the public road; that is not in the crossing; she was dumped over and the third tie is where she went under; she went under the locomotive in between the ties; she was drove in between the ties and got under the locomotive and was carried about fifty rods."

There was but one witness introduced by defendant. This was its section foreman, who was a mile and a half distant at his home, at the time of the occurrence. He did not see the collision and had no actual knowledge of precisely where it occurred. He gave evidence to the effect that on the following day he found and buried the cow, traced the blood, etc., to the crossing of the highway, where he investigated and found the cow had been lying on the track and was run upon by the locomotive at a point where plaintiff's witness said she was first "dumped" after having been pitched from the north by the locomotive over the cattle-guard. Witness also said: "I looked both ways; I could not see any place only from the road crossing south that there had been anything drug. She was struck undoubtedly on the crossing." On the evidence of this witness, defendant requested and the court refused to instruct as follows:

"The court further instructs the jury that if you find from the evidence that the plaintiff's cow was killed by defendant's train, and at the time she was struck by the same she was on a public crossing over defendant's railroad, then the presumption is, in the absence of proof to the contrary, that she entered on its track where struck, and the plaintiff cannot recover; and the burden is on the plaintiff to show to your satisfaction by a preponderance of the evidence that she did not enter on the track on the public road, but at some point thereon where the defendant was required to fence."

In actions under the railroad fence law, there are two propositions essential to notice here as well settled. They are: first, it is the point at which the animal enters the right of way and not the point of collision which determines the liability or non-liability of the defendant on account of killing stock. [Accord v. Railroad, 113 Mo.App. 84-98; Bumpas v. Railroad, 103 Mo.App. 202, 77 S.W. 115; Dickinson v. Railroad, 103 Mo.App. 332, 77 S.W. 88; Redmond v. Railroad, 104 Mo.App. 651, 77 S.W. 768; 3 Elliott on Railroads, sec. 1201.]

Second, cases often arise where the animal is killed at a point where the railroad is required to maintain proper fences and not a word or circumstance in proof indicates the point at which the entry upon the right of way was made. In such cases, it has been frequently determined to be a legitimate and proper inference proceeding from the facts of collision at such a point, that the animal entered the right of way at the point where the collision occurred; and such inference is well established in the adjudicated cases as a disputable presumption going to supply the omitted fact pertaining to the point of entry, and as such, is frequently acted upon by the courts to that end, as said, in the absence of proof to the contrary. [Jantzen v. Railroad, 83 Mo. 171; McGuire v. Railroad, 23 Mo.App. 325; Pearson v. Railroad, 33 Mo.App. 543; 3 Elliott on Railroads, sec. 1214.]

As is well known, presumptions, as a general proposition, are divided into two classes: irrebuttable presumptions, or presumptions of law, and rebuttable presumptions, or presumptions of fact. Some presumptions are irrebuttable and proceed as an arbitrary rule of law to the effect that a particular inference of fact shall necessarily be drawn from certain established facts. [22 Am. and Eng. Ency. Law (2 Ed.), 1234; Ham v. Barret, 28 Mo. 388.] There are other presumptions of law, however, which are rebuttable as pointed out by Mr. Lawson in his work on Presumptive Evidence, 560. [16 Cyc. Law & Proc. 1073.] However this may be, the presumption referred to in the instruction and sought thereby to be invoked is a presumption of fact. All presumptions of fact proceed from other facts in proof (Lawson on Presumptive Evidence, 652), and supply an omitted fact in accord with the dictates of human experience on like questions. They are therefore rebuttable or disputable as a matter of course. Inasmuch as such presumptions merely amount to an assumption of what may be true, as indicated by the probabilities and the rationale of experience, they may be entirely overcome or removed from the case by competent proof going to supply the fact presumed. [Lawson on Presumptive Evidence, 559; 22 Am. and Eng. Ency. Law (2 Ed.), 1235-1236; Moreau v....

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