Carlos v. Missouri Pacific Railway Co.

• Decision Date: 16 May 1904
• Citation: 80 S.W. 965,106 Mo.App. 574
• Parties: EDWARD H. D. CARLOS, Respondent, v. THE MISSOURI PACIFIC RAILWAY CO., Appellant
• Court: Kansas Court of Appeals

80 S.W. 965

106 Mo.App. 574

EDWARD H. D. CARLOS, Respondent, v. THE MISSOURI PACIFIC RAILWAY CO., Appellant

Court of Appeals of Missouri, Kansas City

May 16, 1904

Appeal from Cooper Circuit Court.--Hon. Jas. E. Hazell, Judge.

Affirmed.

Wm. S Shirk for appellant.

The verdict of a jury or the finding of a court, must have substantial evidence to support it, or it will be set aside. Alexander v. Railway, 37 Mo.App. 609; Wight v Railway, 20 Mo.App. 481; Brewery v. Prodeman, 12 Mo.App. 573; O'Donnell v. Railway, 7 Mo.App. 190.

W. M Williams and W. W. Kingsbury for respondent.

(1) Plaintiff's evidence made a prima facie case. The train was coming from the south. The horse was evidently frightened by the train and was running north. This made a case for the trier of the facts. Jackson v. Railway, 38 Mo.App. 170; Blewett v. Railway, 72 Mo. 583. (2) The trial judge saw the witnesses, observed their demeanor and conduct upon the stand, and it was his duty, sitting as a jury, to pass upon the credibility of their evidence and the weight to be given to their testimony. This court will not undertake to pass upon the weight of the evidence, or to review the finding of the court in that particular.

OPINION

BROADDUS, J.

The plaintiff recovered judgment in the circuit court for $ 85 for an injury to his horse. Defendant appealed. Plaintiff claimed that the horse went upon defendant's right-of-way over a defective cattle guard at a point where defendant was required to fence; and that the horse being frightened by a passing locomotive and train, ran into a culvert on said right-of-way and broke his leg, rendering him valueless.

The defendant's sole contention is that the finding and judgment are not supported by the evidence.

For the sake of convenience we adopt defendant's statement of the case: The plaintiff testifying in his own behalf did not pretend that he saw the horse running from the train or that he saw him injured. When asked when and where and how the horse was injured he first answered: "Well, he was injured in the bridge caused by a train coming through about daybreak in the morning. About a quarter, something like a quarter, south of the cattle guard, south of the city of Bunceton." Plaintiff then testified further: "I saw the horse after his leg was broken, standing on the right side, west side or southwest side of the bridge. The way I happened to go down there, I heard the alarm whistle of the train and my mother was very much alarmed and told me to get up and see if some of the horses were hurt by the train, and I did so. It was about a half an hour after I heard the alarm of the train till I went down to where the horse was. I examined the bridge or culvert near where I found the horse. I found tracks on the south side of the bridge very deeply implanted, and there was blood on the north side of the bridge. They were horse tracks. I could not tell from the tracks where the horse got in on to the railroad. His right foreleg was broken." Plaintiff then testified on cross-examination that "all indications show that he went over south to the trestle and the train got him from the south. He could walk on side of the trestle going down, that is, between the trestle and the fence. I saw the tracks on the railroad leading up from the south to the trestle work. The tracks indicated that the horse was going north. I did not see any tracks where he had gone south from the cattle guard past the trestle work. All the tracks I saw he was coming north towards the trestle work. The trestle work is ten or twelve feet in length. From the marks I saw on it it may be that the horse jumped from one end of the trestle ten or twelve feet to the other end, and it may be he did not. I could not...