Blewett v. Wyandotte, Kansas City & Northwestern Ry. Co.

• Decision Date: 31 October 1880
• Citation: 72 Mo. 583
• Parties: BLEWETT v. THE WYANDOTTE, KANSAS CITY & NORTHWESTERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

72 Mo. 583

BLEWETT

v.THE WYANDOTTE, KANSAS CITY & NORTHWESTERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

James Scammon for appellant.

Rathbun & Shewalter for respondent.

1. RAILROAD: evidence in action for killing stock.

HENRY, J.

The plaintiff alleged in his statement that a locomotive of defendant, passing over its road, ran against and killed a cow of plaintiff, at a place on defendant's road which, by law, the defendant was bound to fence. On the trial there was a verdict for plaintiff for $65, and judgment thereon, from which defendant has appealed, and contends that there was no evidence tending to establish the allegations in the statement. The evidence was that the cow was found on the side of defendant's track, with one of her hind legs broken, her hips badly torn, and a portion of her entrails protruding, and that there was blood and cow hair on the track, near the place where the cow was found. This warranted the court in submitting the case to the jury.

2. DAMAGES: harmless error in instruction.

Appellant also complains that the court declared an improper rule of damages. The evidence as to the value of the cow, was contradictory. It was variously estimated at from $30 to $100, and the instruction declared that, if the jury found for plaintiff, “they should assess his damages at whatever sum they may believe he has sustained by such killing, not to exceed the amount claimed in his statement of his cause of action.” There was no evidence to warrant vindictive damages, and the jury should have been instructed, if they found for plaintiff to allow the value of the cow, etc. The instruction was objectionable; but as the evidence introduced of the market value of the cow warranted the jury in finding that value to have been $65, we cannot see that the defendant has been injured by the instruction, and the error will not, therefore, justify a reversal of the judgment.

3. PRACTICE: order of argument.

Counsel for appellant complains that plaintiff's counsel, at the trial, waived his opening address to the jury, and that defendant's counsel thereupon claimed the right to close the argument to the jury, which the court refused. It does not appear that plaintiff's counsel did make the closing argument; but however that may be, it was a matter to be regulated by the rules of court, and whether there was any rule of court, or not, on the subject,...