Powell v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 28 February 1865
• Parties: JOSEPH POWELL, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD Co., Appellant.
• Court: Missouri Supreme Court

35 Mo. 457

JOSEPH POWELL, Respondent,

v.THE HANNIBAL AND ST. JOSEPH RAILROAD Co., Appellant.

Supreme Court of Missouri.

February Term, 1865.

Appeal from Livinston Circuit Court.

Carr, for appellant.

Ryland & Son, for respondent.

DRYDEN, Judge, deliver the opinion of the court.

Powell, the plaintiff below, sued the railroad company before a justice of the peace in Livingston county, for the value of a mule of the plaintiff killed on the defendant's railroad. The complaint filed with the justice alleged the killing to have occurred in Livingston county, in May, 1863, on a part of the road not enclosed by a lawful fence, and not at the crossing of a public highway, and asked judgment for the value of the mule laid at $125. The plaintiff having recovered judgment before the justice, the defendant appealed to the Circuit Court, where, on a trial de novo, the plaintiff again recovered, and the defendant has brought the case here by appeal.

The appellant has pressed upon or consideration several grounds for the reversal of the judgment of the Circuit Court, which we will notice in the order in which they are presented.

1. A witness who was introduced to show the absence of a cattle-guard, and then to prove the railroad at the place where the mule was killed was not enclosed by a lawful fence, having answered that he was ignorant of what a cattle-guard was, the respondent was permitted to describe a cattle-guard, and then to ask the witness if the thing described existed at the place, and this the appellant claims was error.

The question which the witness was unable to answer was only introductory and did not bear upon the main issue in the case. The ultimate fact sought to be proved was the existence or nonexistence of a cattle-guard at a given place. The inability of the witness to answer the preliminary question was by no means inconsistent with his intimate knowledge of the ultimate fact to be proven. Now, assuming that the witness possessed the knowledge supposed, shall the plaintiff be deprived of it merely because of the ignorance of the witness of the preliminary matter? One would think not. And yet this is just what the appellant's position practically leads to, for it is scarcely conceivable how the mind of the witness could have been brought to the point and his knowledge of the disputed fact elicited by any other mode of examination than the one employed and which is now complained of.

2. In the progress of the trial, the respondent asked a witness (Moore) the following question, viz: “What was the value of this mule at the time it was killed?” to which the appellant's counsel objected, and stated as the ground of his objection “that the question was...