Carter v. Current River Railroad Company

• Decision Date: 12 June 1900
• Citation: 57 S.W. 738,156 Mo. 635
• Parties: CARTER v. CURRENT RIVER RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

57 S.W. 738

156 Mo. 635

CARTER v. CURRENT RIVER RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

June 12, 1900

Appeal from Carter Circuit Court. -- Hon. John G. Wear, Judge.

Affirmed.

W. J Orr for appellant.

(1) There is no proof that M. H. Moss, the justice before whom this suit was commenced, resided or held his office in the township where the stock was killed, or in an adjoining township. Neither does the transcript of the justice show this to be so. R. S. 1889, sec. 6122; Lindsay v Railroad, 36 Mo.App. 51; Rohland v. Railroad, 89 Mo. 180. (2) The verdict is without evidence to support it. The defendant's engineer, the only witness who knew anything about the movements of defendant's trains, was not contradicted nor impeached, and the jury had no right to disregard his testimony. Oglesby v. Railroad, 150 Mo. 137; Reichenbach v. Ellerbe, 115 Mo. 588; Long v. Moon, 107 Mo. 334; Caruth v Richeson, 96 Mo. 186; Avery v. Fitzgerald, 94 Mo. 207; Garrett v. Greenewell, 92 Mo. 120; Spohn v. Railroad, 87 Mo. 74; Whitsett v. Ranson, 79 Mo. 258.

John C. Brown and Daniel Huett for respondent.

(1) Appellant admits in its affidavit for an appeal and recognizance in appeal that M. H. Moss was a justice of Carter township, Carter county, Missouri, and no court ever required further proof of this jurisdictional fact. (2) As to the second contention of appellant, we deem it sufficient to say that the jury was the judge of the weight of the evidence and credibility of the witnesses and there is not anything in the record to authorize this court in saying they were influenced by passion or prejudice.

OPINION

MARSHALL, J.

This is an action under section 2611, Revised Statutes 1889, to recover double the value -- thirty-five dollars -- of two steers alleged to have been run over and killed, by one of defendant's trains, on the 28th of August, 1896, in Carter township, Carter county, Missouri, at a point not within the limits of any corporation, town or city or switch limits of any station or at any crossing of any public or private road or street over the railroad, but where the railroad passes through, along and adjoining uninclosed lands, in consequence of the defendant's failure to construct and maintain a lawful fence and cattle guard, as is by the said statute required.

The suit was begun and tried before M. H. Moss, who is described in the caption of the petition to be "a justice of the peace of Carter township, Carter county, Missouri," who rendered judgment for the plaintiff for seventy dollars, from which defendant appealed to the circuit court, where upon a trial de novo the same judgment was rendered, and defendant appealed to this court.

The defendant contends here, as it did in the trial court, 1st, that section 2611, Revised Statutes 1889, violates sections 20 and 30 of article 2 and section 53 of article 4 of the Constitution of Missouri, and articles 5 and 14 of the Constitution of the United States; 2d, that there is no proof that M. H. Moss before whom this suit was commenced was a justice of the peace of the township in which the stock was killed; and, 3d, that there was not sufficient evidence to make a case under the statute.

I.

The constitutionality of section 2611, Revised Statutes 1889, has so recently been sustained in a clear opinion by Brace, P. J., in the case of Kingsbury v. M. K. & T. R. R., 156 Mo. 379, 57 S.W. 547, and in which he so exhaustively reviews the prior decisions of this court and of the Supreme Court of the United States and shows that such has been the uniform and unbroken line of decisions, that nothing further need be said than that the constitutionality of that statute must be regarded as settled in this State.

II.

To show that Moss was a justice of the peace for Carter township, Carter county, the respondent sets out in full the petition, which recites that fact in the caption, the summons which the justice issued to the constable of that township, the return of the constable showing the service of the summons upon the agent of the defendant in that township, the affidavit for appeal signed by appellant's attorney which recites that the suit was before Moss as justice of the peace for that township, and the appeal bond which recites in its body that the defendant "has appealed from the judgment of M. H. Moss, a justice of the peace for Carter township, in Carter county, Missouri," and the respondent contends that these facts conclude the inquiry on this question. If these facts appeared in the record before this court there would be no room for this contention of the defendant, but of these, only the petition, reciting in its caption, "Before M. H. Moss, justice within and for Carter county, Mo." is embodied in the transcript in this case.

But there is one other recital in the record before this court which is most important; it is the recital that, "On the 15th day of September, 1897, there was filed in the office of the clerk of the circuit court" (of Carter county) a transcript from M. H. Moss, one of the justices of the peace in and for said county, which transcript and accompanying papers are in words and figures as follows:" That transcript states the parties; that the suit was before Moss, "justice within and for Carter county, Mo.;" that the suit was filed August 27, 1897, "for stock killed by defendant for $ 35;" the issuance of the summons, returnable September 11, 1897; the appearance of both parties on the return day; the trial and judgment; the issuance of the execution to "Charles Frazier, constable of Carter township, Carter county, Missouri;" and the appeal. All of which complies with the duty imposed upon the justice of the peace by section 6131, R. S. 1889.

These recitals are sufficient, without considering the other matters cited by respondent, which can not be here considered because they are not in the record before us, to show, prima facie, at least, that Moss was a justice of the peace for Carter township, in which township the petition charges the stock was killed, and that this suit was begun in that township, and hence satisfy the requirements of the rule laid down in Rohland v. Railroad, 89 Mo. 180, 1 S.W. 147, and Lindsay v. Railroad, 36 Mo.App. 51.

III.

We adopt the defendant's statement of its third contention, which is as follows:

"We next contend that the verdict is without sufficient evidence to support it, and that it is in direct conflict with the uncontradicted evidence.

"The plaintiff's witnesses testified to circumstances (there were no eye witnesses) from which the jury might have found that the stock was killed by a train, but for the evidence of defendant's witnesses. Plaintiff's witnesses testified to finding the two steers near the foot of a steep rocky bluff near defendant's track, and that they saw what they took to be blood on the ties, and found a horn of one of the steers on the track. This is not inconsistent with the testimony and theory of defendant's witnesses that they found signs on this rocky precipice which indicated that there had been a...