Boggs v. The Missouri Pac. Ry. Co.
| Decision Date | 08 June 1885 |
| Citation | 18 Mo.App. 274 |
| Parties | THOMAS C. BOGGS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Cooper Circuit Court, HON. JOHN P. STROTHER, J.
Affirmed.
The facts are sufficiently stated in the opinion of the court.
ADAMS & BOWLES, for the appellant.
I. The plaintiff bases his right to recover upon several acts of negligence, as leaving down the wire fence, the negligent construction of the fence, and the unusual whistling of the locomotive. But none of these acts was the proximate cause of the injury so far as appears from the evidence, and there was no proof that the fence was negligently constructed, or that there was any whistling at all.
II. The damages must be shown to be the result of the negligence charged in the petition; that is, the negligence must first be shown, and this fact must be supplemented by testimony tending to show that the negligence occasioned the damage. Holman v. R. R. Co., 62 Mo. 562; Stoneman v. R R. Co., 58 Mo. 503; Braxton v. R. R. Co., 77 Mo. 455; Moshier v. R. R. Co., 8 Barbour (N. Y.) 427; R. R. Co. v. Hacket, 10 Ind. 409.
III. The question of negligence is a mixed question of law and fact, and it was the duty of the court to have instructed the jury whether the facts which the testimony tends to prove will, if found true, constitute such negligence as will enable the plaintiff to recover. Trow v. R. R. Co., 24 Vermont 487; Filer v. R. R. Co., 49 N.Y. 47; Johnson v. R. R. Co., 11 Minn. 296; Goodwin v. R. R. Co., 75 Mo. 73; Farwell v. R R. Co., 75 Mo. 575.
IV. It was the duty of the court to have instructed the jury, and the judge in submitting the whole issue to the jury without instruction, committed error. Graham on New Trials 288; 2 Wendell 596.
V. This matter was brought to the attention of the trial court in the motion for a new trial, and in overruling the same the court committed error. So the defendant's instruction in the nature of a demurrer to the evidence should have been given and in refusing the same the court erred.
DRAFFEN & WILLIAMS, for the respondent.
I. This is an action for damages for an injury caused by defendant's negligence. The statute imposed the duty upon it of erecting and maintaining fences along the sides of its railroad where it passed through plaintiff's pasture. The omission to comply with this statutory requirement was negligence, and defendant is liable for any damages resulting therefrom. While an action could not be maintained for the penalty, given by the old forty-third section of the corporation law (section 809, Revised Statutes, Mo. 1879), unless the animal was injured by contact with defendant's cars, yet in a common law action for negligence, it is liable for any damage resulting from its failure to perform its statutory duty. Goodwin v. R. R., 75 Mo. 73; Isabell v. R. R. Co., 60 Mo. 425; Schmidt v. R. R. 23 Wis. 186; 1 Thompson on Neg. p. 558, sect. 2. 2 Ibid 1232, sect. 5; Karle v. R. R., 55 Mo. 476. Pierce on Railroads, 348. Wood on Nuisances, p. 141, sect. 138.
II. The damages sustained were the direct result of defendant's negligence, in failing to maintain fences as required by law. 1 Sutherland on Damages, p. 25; 5 Field on Damages, page 53, sect. 54, and notes; 2 Thompson on Neg., p. 1096, sect. 10. Nagel v. Mo. Pac. Ry. Co., 75 Mo. 653.
III. The defendant not only failed to maintain a proper fence, but the wires in the condition they were left for several months, and up to the time of the injury sued for, constituted a snare and trap for plaintiff's stock, for which it is also liable. Crowhurst v. Amershaln Burial Board, 7 C. L. Journal 465; Flori v. St. Louis, 69 Mo. 341; Lynde v. Clark, 14 Mo.App. 74; Nagel v. R. R., 75 Mo. 653.
IV. In this state, in civil cases, the trial court is not required to give instructions unless asked to do so by the parties. Sect. 3655, Revised Statutes, Mo. 1879. Aliter in criminal cases, sect. 1908, Rev. Stat. Mo. 1879.
The defendant fenced its track through plaintiff's pasture with barbed wire and posts sixteen feet apart. Several months before the injury to plaintiff's mule, defendant, in repairing a culvert, left a gap in the fence, so that stock might stray from the pasture through the gap into defendant's right of way. When stock were once on the right of way between the wire fences, there were no means of getting out except through the gap at which it entered; and that, on a train approaching from the south, there would be no escape for frightened stock except to run back, meeting the train, or by jumping over or through the fence, unless we would suppose the animals would stand still beside the track. Plaintiff's was the only evidence offered. The only instructions offered by either party was a demurrer to the evidence...
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