Binicker v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 660
• Parties: BINICKER v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 660

BINICKER

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.

REVERSED.

Geo. W. Easley for appellant.

The first instruction on behalf of plaintiff is erroneous. If the gate blew open for want of a proper fastening and the cattle entered because the gate was blown open, plaintiff could recover. If it was opened by third parties, the want of a proper fastening was not the proximate cause of the injury, and defendant was not liable. There was evidence on each of these theories, and the jury should have been instructed specifically on each state of facts in evidence. It was a question of law whether the injury was occasioned by want of a proper fastening, to be ruled by the court for the plaintiff if the jury found that the gate blew open for want of a proper fastening, and for the defendant if it was left or propped open by third parties. Henry v. Railroad Co., 76 Mo. 293. The jury might well have found under the court's instruction that “proper hook and latches for fastening” the gate meant such as could not be blown or left open. The statute requires such fastenings as “may be easily opened and shut.” R. S., 1879, § 809.

S. B. Green for respondent.

MARTIN, C.

This is an action for the killing of animals under section 809, Revised Statutes, 1879. In his complaint, the plaintiff claims double damages in his first count for the killing of a cow, in his second for the killing of a two year old steer, in his third for the killing of a three year old heifer, in his fourth for the killing of a steer one and a half years old. On trial anew in the circuit court without jury there was a finding and separate assessment of damages on the three first counts, which in the aggregate sum up $120, for which judgment was entered in plaintiff's favor, to reverse which defendant appeals. The evidence failed to sustain the ownership of the property described in the fourth count, and no finding either way appears in the judgment of the court.

The evidence tended to prove that the cattle were all injured at the same time, and that they entered upon the defendant's road through a gate which it was the duty of the defendant to maintain; that the gate had originally been furnished with padlock and key, and that the key had been left in custody of a near neighbor; that the lock had been torn off by parties unknown; that in place thereof the defendant substituted a wire, one end of which was fastened on the gate frame, the other end of which terminated in a loop, which upon closing the gate, fitted over a large bull spike...