Boucher v. Wabash Ry. Co.

• Decision Date: 03 December 1917
• Docket Number: No. 12607.,12607.
• Citation: 199 S.W. 742
• Parties: BOUCHER v. WABASH RY. CO.
• Court: Missouri Court of Appeals

199 S.W. 742

BOUCHER v. WABASH RY. CO.

No. 12607.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

On Rehearing, December 31, 1917.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Suit by R. M. Boucher against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

O. C. Phillips, of Moberly, for appellant. S. O. Hunter and A. B. Chamier, both of Moberly, for respondent.

BLAND, J.

This is a suit for the negligent killing by defendant of two of plaintiff's horses. Plaintiff recovered a judgment of $850 for the same, and defendant has appealed.

Defendant urges that a demurrer to the evidence should have been sustained. This point necessitates a detailed statement of the evidence, taken in its most favorable light to plaintiff.

The evidence shows that plaintiff lived three-fourths of a mile northwest of defendant's railroad crossing; that at said crossing the railroad runs north and south, and is intersected at right angles by the public road running east and west. Plaintiff's farm is situated upon the public road. During the night plaintiff's horses escaped from his field onto the public road. The wandering of these horses was traced by means of hoof-prints; it having rained that night, the prints showed plainly in the mud. The evidence shows that the horses were tracked on the south side of the road eastwardly across defendant's tracks for several yards, and that thereafter the horses turned back toward the west and were tracked on the north side of the road back to and upon the railroad to within four feet of the north cattle guard; at this latter point the horses reached the rock ballast, and from this point they were traced by means of mud and footprints in the ballast north across the cattle guard and 90 feet on toward the north on defendant's right of way, where fresh horse manure was found, and from this latter point back south again to a point 4 or 5 feet north of the cattle guard.

The hoofprints north of the cattle guard, leading to where the horses turned, showed that both animals traveled at an ordinary gait; the tracks returning south showed that the horses were running, in that the marks were deeper, especially those near the cattle guard, where their toes dug down into the cinders and had made holes therein. From a point 4 or 5 feet north of the north cattle guard to the same and a few feet south thereof were scars on the ballast, and one of the witnesses said that these scars were "apparently strokes not made as an ordinary horse track would be, that indicated a sliding stroke in the ballast." Another witness testified that on the public road "the ground was smoothed off there slick."

One horse was found lying on the south side of the public road, partly in the fenced portion of the right of way and partly on the public road, and the other about 10 yards south of the public road. Both were lying on the west side of the tracks. An examination of the horses show that they had been struck on their rumps from the rear. The evidence further shows that about 100 yards north of the crossing defendant's tracks turn toward the west.

Defendant introduced its fireman, who testified that he was on an engine of defendant which was attached to a south-bound train, and that the horses were struck upon the public crossing while they were crossing the tracks and were headed toward the west. He testified that the engine had a strong electric headlight, that just before reaching the crossing he fired up the engine, and that the train was going at the rate of forty miles an hour when it reached the crossing. He further testified that the headlight of the train would not be thrown upon a spot 90 feet north of the crossing until it had made the turn from west to south.

Plaintiff submitted his case to the jury on the theory that his horses strayed across a defective cattle guard on the north side of the road, and proceeded north from said cattle guard for about 90 feet, at which point they were suddenly put in terror by the engine coming around the curve at such a great rate of speed and by the throwing of the strong headlight upon them; that thereupon they made an effort to escape by running back to the railroad crossing, and that they were either struck 4 or 5 feet north of the cattle guard or in the public road while in the act of escaping from the cattle guard. We believe that plaintiff made out a strong case of circumstantial evidence tending to prove his theory, and that, therefore, there was evidence of sufficient probative force to take the case to the jury on the theory submitted by him.

Defendant urges that the conclusion that the horses were struck while escaping from the cattle guard is builded by an inference upon an inference, and in support of this defendant says that it is a legitimate inference from the hoofprints that the horses got on defendant's right of way north of the cattle guard and that they ran back toward the cattle guard; but defendant says it is building a second inference upon the first when it is said that they ran from the train, and still another inference is made when it is said that the horses were struck by the train while in the act of...