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

• Decision Date: 31 January 1863
• Citation: 33 Mo. 309
• Parties: MEREDITH BROWN, Respondent, v. HANNIBAL & ST. JOSEPH RAILROAD Co., Appellant.
• Court: Missouri Supreme Court

33 Mo. 309

MEREDITH BROWN, Respondent,

v.HANNIBAL & ST. JOSEPH RAILROAD Co., Appellant.

Supreme Court of Missouri.

January Term, 1863.

Appeal from Linn Circuit Court.

Harris, Lander & Carr, for appellant.

I. Respondent's 3d instruction asserts the proposition that the wife may, without regard to the authority from her husband, transfer his property, there being no evidence in the case that she had authority to act as his agent.

II. Respondent's 4th instruction is wrong without a qualification to the effect that the road was not fenced at the place where the injuries complained of were done, and that the same was not done at a crossing of a highway. (Burton v. N. Mo. R. R. Co. 30 Mo. 372; Quick v. H. & St. Jo. R. R. Co. 31 Mo. 399; R. C. 1855, p. 649, § 5.)

III. Appellant's 3d instruction, refused by the court below, should have been given. Mrs. Nave could have transferred title to Brown only as the agent of her husband, and there was no evidence adduced of any authority delegated to her by her husband to make such transfer. (Sto. Ag. p. 8, § 7.)

IV. The respondent did not even attempt to show negligence on the part of the road; so that Brown could only recover under the 5th sec. R. C. 1855, p. 649, title Damages; (Quick v. H. & St. Jo. R. R. 31 Mo. 33; Miles v. same, 31 Mo. 407; Burton v. N. Mo. R. R. 312;) under which respondent was bound to prove that the killing was done on a portion of the road not enclosed by a lawful fence, nor done at a crossing of a public highway.

DRYDEN, Judge, delivered the opinion of the court.

The plaintiff sued the defendant for the value of certain cattle alleged to have been killed by the defendant on its railroad by means of its locomotives and cars. The Circuit Court seems to have tried the case on the theory that the fact of killing was all that was necessary for the plaintiff to prove in order to entitle him to recover. This was wrong. The gist of the action was the negligence of the defendant. Notwithstanding the killing was proved, yet unless it was done negligently or wilfully, the plaintiff was not entitled to recover, and the burden of proving it was on him. In such case the negligence may be established either by proof of the facts and circumstances attending the transaction, or by showing that the injury was done on a part of the road not enclosed by a lawful fence, or not in the crossing of a public highway--facts from which the law raises the inference of negligence. (R. C. 1855, p. 649, § 5.)

Without the proof in one...