Brown v. Missouri, Kansas & Texas Ry. Co.

• Decision Date: 01 February 1904
• Citation: 78 S.W. 273,104 Mo.App. 691
• Parties: J. E. BROWN, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

78 S.W. 273

104 Mo.App. 691

J. E. BROWN, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1904

Appeal from Randolph Circuit Court.--Hon. John A. Hockaday, Judge.

AFFIRMED, si.

Geo. P B. Jackson for appellant.

(1) There was no proof that the horse in question was frightened by an engine and by reason of such fright ran into the fence and was killed. Briggs v. Railroad, 111 Mo. 168-175; Perkins v. Railroad, 103 Mo. 52; Yeager v Railroad, 61 Mo.App. 594. (2) All the evidence shows that the plaintiff's horse passed onto the railroad from the pasture of one Lusk, and there was no proof that the horse was in the pasture by Lusk's permission. Geiser v. Railroad, 61 Mo.App. 459, 463; Ferris v Railroad, 30 Mo.App. 122, 124. (3) The trial court committed error when by its instructions it referred the jury to the pleadings to ascertain what the issues were. Dassler v. Wisley, 32 Mo. 498-501; Grant v. Railroad, 25 Mo.App. 227-232; Remmler v. Shenuit, 15 Mo.App. 192-196; Butcher v. Death, 15 Mo. 272-274; McGinnis v. Railroad, 21 Mo.App. 399-413; Coal Co. v. Railroad, 35 Mo. 84; Proctor v. Loomis, 35 Mo.App. 482-488. (4) The court erred in assuming to make an assessment of attorney's fee, either with or without a jury, on the 20th of September, after having received a verdict and entered final judgment in the case on the 19th of September, and especially after having refused by the amendment of the plaintiff's instruction to allow the original jury in the case to make an assessment of a reasonable attorney's fee. R. S. 1889, secs. 2206 and 2213; Sater v. Hunt, 61 Mo.App. 228; Marble Co. v. Bauman, 55 Mo.App. 204, 211; McCord v. McCord, 77 Mo. 166, 175; Lumber Co. v. Hoos, 67 Mo.App. 264, 276; Cox v. Bright, 65 Mo.App. 417, 422; Beshears v. Banking Assn., 73 Mo.App. 293, 298; Mooney v. Kennett, 19 Mo. 551; Nuckolls v. Irwin, 2 Neb. 60; Freeman on Judgment, sec. 104a.

Wight & Woods for respondent.

(1) There was ample evidence to support the verdict and the court properly overruled the demurrer asked by defendant at the close of all the evidence. Haferty v. Railroad, 82 Mo. 90; Blewett v. Railroad, 72 Mo. 583; Keltenbaugh v. Railway, 34 Mo.App. 147; Combs v. Railroad, 58 Mo.App. 467; Dilly v. Railroad, 55 Mo.App. 123; Harbeston v. Railroad, 65 Mo.App. 160; Blewitt v. Railroad, 72 Mo. 583; Taylor v. Penquite, 35 Mo.App. 403; Gaines v. Fender, 82 Mo. 509. (2) Appellant's contention that there was no proof that the horse was in the pasture of one Lusk with his permission is without merit as the uncontradicted testimony of several witnesses was that the stock of Murphy and Lusk passed back and forth from one pasture to the other by mutual consent and Murphy's own testimony is that plaintiff's horse was in his pasture with his knowledge and consent. (3) There is no merit in appellant's contention that the attorney's fee was illegally taxed.

OPINION

BROADDUS, J.

On December 3, 1900, this cause was affirmed in this court. On the 12th day of said month a motion for rehearing was filed on the ground that the decision was in conflict with a controlling decision of the Supreme Court, to-wit: Paddock v. Railway, 155 Mo. 524, wherein it was held that section 2613, Revised Statutes 1889 (section 1107, Revised Statutes 1899), that provided for an attorney's fee in case the owner of live stock should be compelled to sue for damages to such stock injured or killed, occasioned by reason of the failure of a railroad company to fence its tracks, as provided by law, was unconstitutional. On the 17th day of December, 1900, said motion was sustained and the cause certified to the Supreme Court. At the April term of said Supreme Court an opinion was handed down wherein the court held that it did not have the jurisdiction of the cause; that notwithstanding the section in question was unconstitutional, it could not avail the defendant as it was not "timely and properly invoked in the trial court," and ordered the cause remanded to this court.

This is an action for damages brought under the provisions of section 2612, Revised Statutes 1889, to recover the value of plaintiff's horse which escaped onto defendant's right of way at a place where there was not a lawful fence, was frightened by a passing train and run into a barbed wire fence and was killed. In a trial below, plaintiff recovered $ 25 for the loss of his horse and $ 25 attorneys' fee, and defendant appealed.

"1. A great part of defendant's brief and argument is taken up with the contention that the evidence failed to make a case for plaintiff and that the court should have given a peremptory instruction for defendant. It seems that plaintiff was stopping or boarding with a farmer by the name of Murphy whose pasture adjoined the defendant's right of way on the north. With Murphy's consent plaintiff had his horse in this pasture. Immediately on the west of Murphy's land one Lusk had a pasture; but between these there was no division fence, and the stock, by common consent, was allowed to pass from one pasture to the other. Plaintiff was in the habit of feeding his horse morning and evening, but on the morning of October 15th, the horse was missing and plaintiff found the animal dead on the defendant's right of way. After an investigation it was discovered that the horse had run into a barbed wire fence which so cut and lacerated his throat that he died from loss of blood. The testimony of plaintiff and some of his witnesses tended to show that the horse got upon the track where Lusk's pasture joined the right of way and where the fence was defective, went from there along the track on a run until he got upon a dump or fill and then jumped or slided down and onto the fence where he was fatally injured. From there, the evidence showed the animal walked down the right of way a short distance where he was found dead. The evidence of both parties coincides as to where the horse was injured but disagrees as to where he got upon the right of way--that of the defendant tending to prove that the horse was scared into or driven upon the fence where he was injured, from the pasture side, while that of the plaintiff tended to prove that the animal got upon the railroad at another point and was frightened and caused to run into the wire fence further east. It is true that there was no direct evidence that the horse was frightened by a passing engine and thereby caused to run into the wire fence, neither did any witness testify that he saw or heard any train pass on the night when the animal was killed. The facts and circumstances detailed in evidence however tend to establish that such was the fact. It was shown that trains were due to pass...