Edwards v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 October 1881
• Citation: 74 Mo. 117
• Parties: EDWARDS v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 117

EDWARDS

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Atchison Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Strong & Mosman for appellant.

The petition is fatally defective, and cannot support the judgment. Parish v. M., K. & T. R. R. Co., 63 Mo. 284; Aylesworth v. Chicago, etc., R. R. Co., 30 Iowa 459; Cecil v. Pacific R. R. Co., 47 Mo. 246; Witthouse v. Pacific R. R. Co., 64 Mo. 523; Luckie v. R. R. Co., 67 Mo. 245; Davis v. R. R. Co., 65 Mo. 441; 70 Mo. 202.

W. W. Ramsay with L. D. Ramsay for respondent.

HOUGH, J.

This was an action originally instituted before a justice of the peace under section 809 of the Revised Statutes, to recover double the value of a cow belonging to the plaintiff, which it was alleged had been fatally injured by the engine and cars of the defendant. It appears from the record that at the point where the cow was killed the defendant's road runs north and south through inclosed and cultivated fields, and that the fences running parallel with the road and separating said inclosures from the right of way of the defendant, were in good condition; that the north line of said inclosures on both sides of the railroad, adjoined the southern boundary of the town of Pickering and the open depot grounds of the defendant lying within the limits of said town. At the point where the southern boundary line of said town and said depot grounds crosses the railroad track, a cattle-guard had been constructed in the track of defendant, and fences had been erected at right angles with the road, and on either side thereof, extending from said cattle-guard to the fences separating the inclosures from the right of way. It is admitted by the defendant that the cow got upon its track by going over one of the cross-fences connecting the cattle-guard with the side fences at a point where said cross-fence was only two feet high, and that said cow was struck by one of its trains. The testimony tended to show that the cross-fences could not be made more than two feet high at the point of junction with the cattle-guard in the track, without interfering with the passage of trains. The evidence also tended to show that other cattle passed over the cross-fences on to the defendant's right of way, and that the plaintiff's cow was breachy. One witness testified that the cow was in a dying condition when he saw her, and the station agent of the defendant, in his evidence, spoke of the cow as having been killed. The plaintiff swcre she was worth $35, although he gave less than that sum for her.

The court, of its own motion, gave the following instructions:

1. If the jury believe from the evidence the plaintiff's cow got upon the railroad in consequence of the failure of the company to construct and maintain a sufficient fence connecting with a cattle-guard at the depot grounds, south of Pickering, in Union township, Nodaway county, and was struck and injured by the train, you should find for plaintiff the value of the cow so struck and injured.

2. What is meant by a sufficient fence in this instruction is, one made in the usual manner, and which is sufficient, and will turn ordinary stock, cattle and horses which are not breachy; and if you find that the fence was not sufficient to turn such stock, the fact that plaintiff's cow may have been breachy would not prevent plaintiff from recovering, if she got upon the road in consequence of the insufficiency of the fence.

3. If the jury believe from the evidence that the railroad was fenced on both sides of the road, where the injury complained of happened to plaintiff's cow, and until it reached the necessary depot grounds, and that where the fence terminated at said depot grounds, there was a cattle-guard constructed in the usual way and manner of constructing cattle-guards on railroads, and such as is usually found to be sufficient to prevent horses and cattle from getting on the railroad track, inside its fences, and you find from the evidence that the cow was a breachy animal, and jumped the fence or cattle-guard, and went upon the road and was killed, you should find for defendant.

4. If the cross-fences from the fences on the sides of the road to the railroad track at the cattle-guard, were constructed and joined to the road in the usual way, and in as good shape as they could be made, without interfering with passing trains, this is all the company is required to do. It is not bound to make a fence or cattle-guard that will absolutely prevent all stock from getting upon the road. If the jury believe from the evidence that the cow was breachy, and in consequence thereof jumped the fence or cattle-guard which was sufficient to turn stock not breachy or unruly, and was killed on the road by the cars, the company is not liable.

5. If plaintiff's cow...