Ackley v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 24 April 1888
• Citation: 30 Mo.App. 657
• Parties: JAMES ACKLEY et al., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 657

JAMES ACKLEY et al., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the Jefferson Circuit Court, HON. JOHN L. THOMAS, Judge.

Affirmed.

GEO. H BENTON, for the appellant: When it appears from the evidence that the damages sought to be recovered, by reason of successive acts of trespass by hogs escaping into plaintiffs' cornfield through the railroad fence, were occasioned in part and intermingled with those arising from plaintiffs' own negligence, in failing to keep their fencing in good repair, plaintiffs can recover, if at all only nominal damages. Clark v Railroad, 36 Mo. 203; Trice v. Railroad, 49 Mo. 438; Grau v Railroad, 54 Mo. 240. The court erred in the instructions given on its own motion to the jury. The measure of damages is indefinitely stated, and the jury are left on this point virtually without instructions, and the rule as to reasonable time to make repairs is not correctly stated. Sedgwick on Damages, 269; Richardson v. Northrup, 66 Barb. 85; Gresham v. Taylor, 51 Ala. 505; Rutledge v. Railroad, 78 Mo. 289; Clardy v. Railroad, 73 Mo. 576; Case v. Railroad, 75 Mo. 668.

J. F. GREEN, for the respondent: The instructions distinctly told the jury that the plaintiffs could only recover such damages as were occasioned by hogs coming into plaintiffs' field through breaches in defendant's fence, and as the evidence specifically disclosed the amount of damage resulting from the defective fence of defendant, the jury could not have been misled. Walther v. Railroad, 55 Mo. 271; Trice v. Railroad, 49 Mo. 438. The instructions as a whole correctly declare the law and comply fully with the rule announced in repeated adjudications of the appellate courts. Clardy v. Railroad, 73 Mo. 576; Heaston v. Railroad, 18 Mo.App. 403; Morris v. Railroad, 79 Mo. 367; Wilson v. Railroad, 87 Mo. 431; Maberry v. Railroad, 83 Mo. 667.

OPINION

PEERS J.

This suit was instituted in the circuit court of Jefferson county on the fifteenth of August, 1887, to recover damages alleged to have been occasioned during the years 1884, 1885, and 1886, to crops of plaintiffs by cattle, hogs and other animals escaping from defendant's right of way through defective fences along its line of road. The petition contains three counts, each charging the damages to have resulted by reason of the neglect of the railroad company to keep and maintain its fences along plaintiffs' field in good repair. The first count asks for damages in the sum of one hundred dollars, the second count in the sum of one hundred and twenty-five dollars, and the third count in the sum of one hundred dollars, and the prayer is that the amount sought to be recovered in each count of the petition be doubled under the provisions of the statute. Rev. Stat., sec. 809. The lands upon which said crops were grown are situated in Jefferson county, Missouri, and contain about one hundred and ten acres.

The answer is a general denial.

The evidence introduced tended to establish the allegations of the petition, and the jury returned a verdict finding the damages separately under each count of the petition, awarding sixty dollars under the first, seventy-five dollars under the second and sixty-five dollars on the third, which amounts the court doubled and rendered judgment accordingly.

After a motion for new trial had been filed and overruled, the case was appealed by defendant.

The only question presented for review here is, whether the court committed error in giving and refusing instructions.

The following instruction, asked by the defendant, was refused by the court:

" The court instructs the jury that the plaintiffs in this case can recover for such damage only as the jury find, from the evidence, was occasioned by hogs coming into the field in question, through the railroad fence, and if they believe, from the evidence, that hogs came into the said field through plaintiff's own fences and caused any of the damages complained of, the plaintiffs cannot recover for the same, and the burden of proof devolves upon the plaintiffs to establish to your satisfaction, by a preponderance of the testimony, what damages the railroad company is liable for, and if you are unable, from the evidence, to determine to your satisfaction what damages were occasioned by defective railroad fences, your verdict for the plaintiffs, if you find any, must only be for nominal damages."

Defendant excepted at the time to the court's refusal to give this instruction.

Thereupon the court, of its own motion, gave to the jury the following instructions:

" This action is brought to recover for damages done to the crops of plaintiffs on the first count for one

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