Moore v. Missouri Pacific Ry. Co.

• Citation: 73 Mo. 438
• Parties: MOORE v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 30 April 1881
• Court: United States State Supreme Court of Missouri

73 Mo. 438

MOORE

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

T. J. Portis and E. A. Andrews for appellant.

Shelley, Southern & Shelley for respondent.

HENRY, J.

This is an action under the 43rd section of the railroad act to recover damages for a mare killed by a train of defendant's cars. Plaintiff had judgment, from which defendant appealed, and the only questions which we are asked to pass upon are: First, Was there any evidence tending to prove that the mare was killed on defendant's road by a train of passing cars? Second, Was there error in the instructions given for plaintiff?

1. VERDICT: practice in the supreme court.

There was no direct evidence that the animal was killed by being run over or against by a train of defendant's cars, but there was evidence to the effect that she and other horses were seen on the defendant's track on the night of May 16th, and that she was found dead the next morning in a deep stone culvert on defendant's right of way with some scratches or cuts on her hind legs, and “that there were horse tracks just above the mouth of the culvert coming slanting from the road two or three feet.” While it must be admitted that the evidence is not calculated to produce absolute conviction that the mare was killed by a train of cars, and although, if passing upon it as jurors, we should have been inclined to find a different verdict from that returned by the jury, we cannot say that the evidence did not tend to establish the facts found, or was wholly insufficient to support the verdict. It is not our province to reverse a judgment because the weight of evidence in our opinion is against the verdict.

2. INSTRUCTIONS: exactness required in framing them.

The instructions complained of told the jury in effect that if the mare got upon the track at a place where the company was bound to fence and had failed to do so, and was killed while on the track by a train of defendant's cars, they should find for plaintiff; and it is contended that it was erroneous in not requiring the jury also to find that the animal got upon the track and was injured by the failure to construct or maintain such fence. Luckie v. C. & A. R. R. Co., 67 Mo. 245; Cunningham v. H. & St. Jo. R. R. Co., 70 Mo. 202, are cited in support of that view. In each of these cases the question was as to the sufficiency of the statement of the...