2 S.W. 439 (Mo. 1886), Miller v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:2 S.W. 439, 90 Mo. 389
Opinion Judge:Sherwood, J.
Party Name:Miller v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Geo. H. Benton for appellant. D. H. McIntyre for respondent.
Case Date:December 20, 1886
Court:Supreme Court of Missouri
 
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Page 439

2 S.W. 439 (Mo. 1886)

90 Mo. 389

Miller

v.

The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from Stoddard Circuit Court. -- Hon. R. P. Owen, Judge.

Affirmed.

Geo. H. Benton for appellant.

(1) The evidence received to prove, as an element for damages in this common-law action, the destruction of plaintiff's crop by cattle and other stock, consequent upon the negligent burning of the plaintiff's fence, was incompetent and illegal, and the court erred in permitting proof of the same. Turner v. Gibbs, 50 Mo. 556; Waters v. Brown, 44 Mo. 302; Clemens v. Railroad, 53 Mo. 370; Peoppus v. Railroad, 67 Mo. 725; Clark v. Railroad, 36 Mo. 202; Douglass v. Stephens, 18 Mo. 362; Kenny v. Railroad, 70 Mo. 255. (2) The court erred in instructing the jury as requested to do by plaintiff. Abbott v. Railroad, 83 Mo. 271; Benson v. Railroad, 78 Mo. 504; Gerren v. Railroad, 60 Mo. 405; Washington Mutual, etc., v. St. Mary's, 52 Mo. 480; Masheck v. Railroad, 3 Mo.App. 600; Glasgow v. Lindell, 50 Mo. 60; Hassett v. Rust, 64 Mo. 325. (3) The court erred in refusing defendant's instructions. Railroad v. Crawford, 68 Mo. 80; Goodrich v. Jones, 2 Hill, 142; Velker v. Sherman, 20 Wend. 639; Climer v. Wallace, 28 Mo. 556.

D. H. McIntyre for respondent.

(1) The court committed no error in allowing plaintiff to prove the destruction of his crop of corn, in consequence of the burning down of his fence, nor in proving the amount and value of the corn. The evidence showed that the range around the premises was good for stock, and that large numbers of cattle, horses and hogs came into plaintiff's field soon after the fire, and that plaintiff, and other persons in his employ, tried to keep the stock out, and protect the corn, until their efforts ceased to avail anything, and the corn was destroyed. 3 Parsons on Cont. [6 Ed.] pp. 178, 179, 180; Waters v. Brown, 44 Mo. 302; Clemens v. Railroad, 53 Mo. 366, 370; Miller v. Mariners' Church, 7 Greenl. 51; Eastman v. Sanborn, 3 Allen, 594. The direct and immediate consequences of the act complained of are to be regarded. Laker v. Damon, 17 Pick. 284; Gray v. Waterman, 40 Ill. 522. And it makes no difference, that he did not intend the consequent injury. Vandenburgh v. Truax, 4 Denio, 464; 2 Greenl. on Ev. [Redf. Ed.] sec. 254. (2) Plaintiff's instruction did not assume the fact of the existence of dry grass on the defendant's right of way. Plaintiff proved the escape of fire from the locomotive, which made out a prima facie case of...

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