Wood v. St. Louis, Kansas City & Northern Ry. Co.

• Citation: 58 Mo. 109
• Parties: ZACHARY WOOD, guardian of FORTUNATUS L. WOOD, Respondent, v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Decision Date: 31 October 1874
• Court: United States State Supreme Court of Missouri

58 Mo. 109

ZACHARY WOOD, guardian of FORTUNATUS L. WOOD, Respondent,

v.ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from St. Charles Circuit Court.

W. Blodgett & M. M'Keag, for Appellant.

John A. Keelar & John B. Allen, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought before a justice of the peace, in Cuivre township in St. Charles county.

The action was founded on the 43rd section of the act concerning “Railroad Companies.” (1 Wagn. Stat., 310.)

The cause of action filed before the justice was substantially as follows: “That on the 30th day of May, 1873, the plaintiff was the owner of two horses and one mule colt; that one of the horses was of the value of one hundred and ten dollars, and the other of the value of one hundred and twenty-five dollars, and the mule colt of the value of forty dollars; that the defendant being the owner of the locomotive and cars used on the railroad of defendant, did negligently and wilfully, by its agents and servants, run over said horses and mule in said township, near a railroad crossing and at a place where said railroad passes through, along and adjoining inclosed and cultivated fields and prairie lands; that the defendant failed to construct and maintain cattle guards and fences at the place where the said animals got on the track of said road, and where the two horses were killed and the mule injured; that in consequence of such failure, the animals came upon the track of said road and the horses were killed by the locomotive and cars of the defendant, and the mule was thereby injured, by which plaintiff was damaged in the sum of two hundred and sixty-five dollars; that the defendant is liable, by the laws of this State, to pay the plaintiff double the amount of the damage so done, to-wit: the sum of five hundred and thirty dollars, for which sum judgment is prayed.

The plaintiff recovered a judgment before the justice for double damages. From this judgment the defendant appealed to the St. Charles Circuit Court. The parties afterwards appeared in the Circuit Court at the time set for the trial of the case, when the defendant made an application for a continuance of the cause, which said application was supported by the following affidavit, to-wit: “Maurice McKeag, attorney for the defendant, makes application for a continuance for the following reasons: 1st--because this is the first term of this court since the appeal was taken, and although notice had been given to the appellee in writing, as required by law, the appellee failed to enter his appearance as required by law; 2nd--because James Smyth who is an important and material witness for the defendant is absent; that the defendant is unable to procure the testimony of said Smyth; that he is not absent through the procurement or connivance of the defendant; that he does not know of any witness by whom he can prove the same facts; that he had not a subpœna issued for said witness, as upon inquiry he ascertained he is in New York; that he expects to find him or have his deposition before the next term of the court; that he cannot safely go to trial without said witness' testimony as he believes that it is material; that the fact of his absence was not known in time to have his deposition to use in said cause.”

This affidavit was subscribed and sworn to by the defendant's attorney, McKeag. The application for a continuance was heard and overruled by the court, to which the defendant excepted.

A trial was had before a jury. The evidence tended to prove facts sufficient to authorize a recovery by the plaintiff. At the close of the evidence the court upon its own motion instructed the jury as follows:

“To entitle the plaintiff to recover, it must be shown to the satisfaction of the jury that the horses and mule belonged to the plaintiff at the time of the killing; that they were killed by the defendant's locomotive machinery, and on a part of the railroad track which passed through cultivated or inclosed fields, and that the horses got on the track in consequence of defective fencing or cattle guards; and if the evidence shows that the killing was at a public crossing, then there can be no recovery. The measure of damages in the event of recovery is double the actual value of the property at the time of the killing.”

The defendant objected to the foregoing instruction and excepted.

The court then, at the request of the plaintiff, gave the jury the following instructions:

“1st.--When any animal or animals shall be killed or injured by the cars, locomotives or carriages used on any railroad in this State, the owner of such animal or animals may recover the value thereof, in an action against the company or corporation running such railroad, without any proof of negligence, unskillfulness or misconduct on the part of the officers, servants or agents of such company, unless the accident complained of occurred on a portion of said road that may be inclosed by a lawful fence or in the crossing of a public highway. 2nd.--That it is the duty of the company or corporation to erect and maintain good and substantial fences at least five feet high on the sides of its road where the same passes through, along, or adjoining inclosed or cultivated fields or prairie lands, with openings and gates and bars therein, and farm crossings of the road for the use of the proprietors or owners of the lands adjoining such railroads, and also to construct and maintain cattle guards at all railroad crossings where fences are required as aforesaid, suitable and sufficient to prevent horses, mules and all other animals from getting on the railroad. Until such fences,...