Carpenter v. Chicago & A. Ry. Co.

• Decision Date: 18 June 1906
• Citation: 95 S.W. 985,119 Mo. App. 204
• Court: Missouri Court of Appeals
• Parties: CARPENTER v. CHICAGO & A. RY. CO.

95 S.W. 985

119 Mo. App. 204

CARPENTER v. CHICAGO & A. RY. CO.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

1. RAILROADS—INJURY TO ANIMALS ON TRACK —ACTIONS—RECOVERY OF DOUBLE DAMAGES.

Where the petition in an action against a railway company for the killing of a horse stated a cause of action under Rev. St. 1899, § 1105, requiring railway companies to maintain gates in their fences at farm crossings or be liable to double the amount of damages, and alleged damages in a specified sum, for which judgment was asked, together with "all other and proper relief according to the statute," and the jury returned a verdict assessing damages, the court properly entered judgment for double damages.

2. SAME—INSTRUCTIONS.

In an action against a railway company for killing a horse because of the failure to maintain proper gates in its fences at farm crossings, as require by Rev. St. 1899, § 1105, the evidence showed that plaintiff lived with his father and that they together had rented a field; that plaintiff rode his horse to the field where he tied it, and that he tracked the horse to a fence dividing the field and an adjacent field, and thence to an adjacent railroad track. Held to authorize an instruction submitting the hypothesis that the field where plaintiff tied his horse was his field.

3. SAME.

Where, in an action against a railway company for the killing of a horse, the evidence showed that the horse escaped from a field to an adjacent field, and thence to an adjacent railroad right of way, which was not fenced as required by Rev. St. 1899, § 1105, an instruction failing to submit the question whether the fence between the two fields was a lawful fence was erroneous; for, if the fence was lawful, the company owed no duty to plaintiff to fence its tracks.

4. TRIAL—INSTRUCTIONS — SUBMITTING QUESTIONS OF LAW.

An instruction, in an action against a railway company for the killing of a horse which escaped from plaintiff's field to an adjacent field and thence to adjacent railroad tracks, which submitted to the jury the question whether the horse was lawfully in the latter field, was erroneous, because submitting a question of law.

5. RAILROADS—INJURING ANIMALS ON TRACK —RIGHT OF ANIMALS ON LAND ADJACENT TO TRACK.

An owner of land adjacent to a railroad track gave a third person permission to pass through the land in going to and returning from an adjacent tract. Held, that the third person was not entitled to turn his stock on the land

adjacent to the railroad track, and thereby become an adjoining proprietor to the railroad track, within the statute requiring railroad companies to fence their tracks.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Floyd Carpenter against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Richard Field and Scarritt, Griffith & Jones, for appellant. John Welborn and Chas. Lyons, for respondent.

ELLISON, J.

This action was brought for the damages done plaintiff by the killing of his horse. The plaintiff prevailed in the trial court. It appears that the action is founded on section 1105, Rev. St. 1899, providing that railway companies shall provide and maintain gates in their fences at farm crossings, and that if, on account of not so providing them, injury results by reason of cattle, horses, etc., escaping onto the railway track, the owner may recover "double the amount of all damages which shall be done" to such horses, cattle, etc. The petition in this case states a cause of action under the statute. It places the value of the horse at $100 and closes with the following prayer: "Wherefore, by reason of the premises, plaintiff says that he has been damaged in the sum of $100, for which he asks judgment, and for all other and proper relief according to the statute in such cases made and provided." The jury returned a verdict assessing plaintiff's damages at $100, and this sum was afterwards doubled by the court, and judgment accordingly entered for $200.

The point is made that error was committed in entering judgment for $200 when only $100 was prayed for in the petition. We ruled in Young v. Railway Co., 33 Mo. App. 509, 518, that on a petition on a statute allowing treble damages for overcharge for freight in certain conditions, which stated the overcharge and concluded with a prayer for that amount and other proper relief, would authorize the court to treble the damages on a motion to that effect. It has always been the rule in this state that in cases where the amount of a plaintiff's damages as assessed by a jury may be doubled, trebled, etc., it becomes the duty of the court to make such increase and render judgment...