60 Mo. 209 (Mo. 1875), Cary v. St. Louis, K. C. & N. Ry. Co.

Citation:60 Mo. 209
Opinion Judge:VORIES, Judge.
Party Name:DANIEL H. CARY, Respondent, v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY Co., Appellant.
Attorney:Ray & Ray, for Appellant, cited Lloyd vs. Pac. R. R. Co., 49 Mo. 199. Hale & Eads, for Respondent,
Court:Supreme Court of Missouri

Page 209

60 Mo. 209 (Mo. 1875)

DANIEL H. CARY, Respondent,

v.

ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY Co., Appellant.

Supreme Court of Missouri.

May Term, 1875

Appeal from Carroll Circuit Court.

Ray & Ray, for Appellant, cited Lloyd vs. Pac. R. R. Co., 49 Mo. 199.

Hale & Eads, for Respondent, referred in argument to Calvert vs. Hann. & St. Jo. R. R. Co., 30 Mo. 242; Id., 38 Mo. 467; Gorman vs. Pac. R. R., 26 Mo. 441; Trice vs. Hann. & St. Jo. R. R., 49 Mo. 438; Biglow vs. North Mo. R., 48 Mo. 510; Meyer vs. North Mo. R., 35 Mo. 352; Lloyd vs. Pac. R. R., 49 Mo. 199; Ellis vs. Pac. R. R., 48 Mo. 231; Powell vs. Hann. & St. Jo. R. R., 35 Mo. 457.)

OPINION

VORIES, Judge.

This action was brought in the Carroll Circuit Court under the provisions of the 43rd section of the act concerning " railroad companies" (Wagn. Stat., 1872, p. 310) to recover double damages for the killing of cattle belonging to plaintiff by the defendant upon its railroad.

There are two counts in the petition, but as the judgment was for the defendant on the first count, no notice thereof need be taken.

The second count charges that the engine and cars used by the defendants ran upon and killed one heifer of the plaintiff of the value of fifty dollars, and that another heifer was thereby crippled and damaged to the amount of fifteen dollars; that said cattle were killed and injured by the negligence of the agents of defendant in running said engine and cars; that at the point on said road where said cattle were injured said road was not fenced, and that it was uninclosed prairie land and where there was no crossing of a public highway of any kind, etc. The petition claimed double damages, etc.

The answer of the defendant does not deny that it is a corporation, etc.; but it does deny the other material allegations of the petition.

The case was tried by the court without the intervention of a jury.

The plaintiff introduced evidence tending to prove that the animals named in the petition belonged to the plaintiff, and that he was damaged by the killing and crippling thereof in the sum of from thirty-five to forty dollars; that the injury happened at a point on the defendant's railroad about one hundred yards east of the depot at Wakenda station, in Carroll county, on said railroad; that the railroad switch at said station extended some thirty feet...

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