Berkbigler v. Cape Girardeau & C. R. Co.

• Decision Date: 03 January 1911
• Citation: 133 S.W. 1170,152 Mo. App. 543
• Parties: BERKBIGLER v. CAPE GIRARDEAU & C. R. CO.
• Court: Missouri Court of Appeals

133 S.W. 1170

152 Mo. A. 543

BERKBIGLER v. CAPE GIRARDEAU & C. R. CO.

Springfield Court of Appeals. Missouri.

January 3, 1911.

Rehearing Denied February 6, 1911.

1. PLEADING (§ 418) — DEMURRER — ANSWER OVER.

Where defendant answers after the overruling of his demurrer, he waives any error in the ruling on the demurrer.

2. APPEAL AND ERROR (§ 499)—RECORD— SHOWING OBJECTIONS.

Where the record does not show any objection to an instruction, the court's action thereon is not before the Supreme Court for review.

3. PLEADING (§ 433)—CURE BY VERDICT.

A petition in an action against a railroad company for injuries to a mule, alleging the duty of the railroad to maintain fences, gates, cattle guards, etc., as provided by statute, and that a certain cattle guard was constructed in such a negligent manner that plaintiff's mule was injured by his foot slipping through such guard, was good after verdict.

4. RAILROADS (§ 411) — CATTLE GUARDS — FENCES.

The intent of the statutes requiring railroad companies to fence their tracks is not only to protect adjoining fields from trespass, but to keep stock off the track, so that they will not be injured.

5. RAILROADS (§ 414) — CATTLE GUARDS — FENCES.

Where a railroad company, instead of fencing its right of way, put a cattle guard where a fence of an adjoining owner crossed the track, it was liable for injuries to an animal which attempted to pass through such cattle guard, though the guard was entirely on its own land.

6. RAILROADS (§ 414) — CATTLE GUARDS — FENCES.

The rule that a man may erect anything that he sees fit upon his own land and that strangers coming upon the land do so at their peril, did not apply to relieve the railroad company from liability for the resulting injuries.

7. RAILROADS (§ 446)—INJURIES TO ANIMALS —JURY QUESTION.

In an action for damages to a mule on account of the negligent construction of a cattle guard, evidence considered and held sufficient to go to the jury on the question of negligent construction.

8. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Evidence as to the manner of construction of all cattle guards in a neighborhood, including the one by which plaintiff's mule was injured, though not the proper method of proving the condition of the particular guard, was not such prejudicial error as to call for a reversal.

Appeal from Circuit Court, Perry County; Charles A. Killian, Judge.

Action by Barney Berkbigler against the Cape Girardeau & Chester Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Giboney Houck and Benson C. Hardesty, for appellant. Edward Robb, for respondent.

COX, J.

Action to recover damages sustained by plaintiff by reason of his mule having become entangled in one of defendant's cattle guards on the 20th day of May, 1905, and having sustained injuries from which it died.

Plaintiff's alleged in his petition that defendant is in possession of and operating a line of railway from Cape Girardeau to West Chester, in the state of Missouri, and that it was the duty of defendant to erect and maintain fences on the sides of its railroad, where the same pass through, along, or adjoining inclosed or cultivated fields, or uninclosed lands, with openings and gates therein, to be hung and have latches and hooks, so that they may be easily opened and shut at all necessary farm crossings of its road. and that it was the duty of defendant to construct and maintain cattle guards where such fences were required, sufficient to prevent horses, cattle, mules, and all other animals from getting on its railroad, or crossing over the same; that at the cattle guard on the place of Gottfried Untereiner in Perry county, Mo., defendant negligently, willfully, and carelessly failed to construct and maintain a cattle guard sufficient to prevent horses, cattle, mules, and all other animals from getting on its railroad, or crossing over the same, and that it was so negligently, carelessly, and defectively constructed and maintained as to expose such animals to the danger of being crippled and injured by the same when they went on it, or over it, or across it. Plaintiff further alleged that on or about the 20th day of May, 1905, a mule belonging to plaintiff went on said cattle guard, in crossing the same, and by reason of said cattle guard having been so defectively, negligently and carelessly constructed and maintained, said mule broke through the same with his right hind leg, and the mule's right hind leg was so badly cut and injured by the metal and material of which said cattle guard was composed that it afterward died of said injuries. Plaintiff further alleged that said mule was of the value of $100, and asked judgment for...