Collins v. Atlantic & Pacific R.R. Co.

• Decision Date: 30 April 1877
• Citation: 65 Mo. 230
• Parties: COLLINS v. ATLANTIC & PACIFIC R. R. Co. APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 230

COLLINS

v.ATLANTIC & PACIFIC R. R. Co. APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from the Common Pleas Court of Cass County--HON. JNO. L. MORRISON, Judge.

J. N. Litton for appellant.

The giving of the second instruction was an entire departure from the case made by the petition. The petition was founded upon the statute requiring a fence, and, therefore, any other character of proof or instructions were illegal. 60 Mo. 212, Cary v. St. L., K. C. & N. R. R. Co.; 31 Mo. 399, Quick v. Han. & St. Jo. R. R.; 31 Mo. 407, Miles v. Han. & St. Jo. R. R. This instruction casts loose from the case set up in the petition, and after looking through the statutes finally settles down upon 1 Wag. Stat. 310, § 38, and proceeds to instruct the jury, not upon what will authorize a recovery under the statute on which the petition was framed, or even under the requirements of the common law, but under a separate and distinct statute giving a cause of action where none existed at common law; certainly this cannot be the proper practice. 45 Mo. 258, Kennayde v. Pacific R. R.; 1 Saund. 135, N. 3; 5 East 244; Saund. Pl. & Ev. 830; 17 Wend. 88, Bayard v. Smith; 1 Chitty's Plead. 372; 2nd Chitty's Plead. 504; 26 Mo. 147, Walther v. Warner. Instructions as to issues not raised by the pleadings are improper. 43 Mo. 591, Camp v. Heelan. No brief was filed for the respondent.

HENRY, J.

This was an action in the Common Pleas court of Cass county to recover damages against defendant for the killing of a mare belonging to him by a train of cars passing over defendant's road. The petition alleges that defendant carelessly and negligently ran its cars, engines and locomotives over the said mare, and that the point on said road where it occurred was not at the crossing of any public road or highway, and was at a point where the road ran through uninclosed prairie lands and was not fenced. The facts as disclosed by the evidence, and not controverted, are that the mare was killed on defendant's road, about 40 rods from a crossing of a public highway which the train was approaching. That at that point the road ran through uninclosed prairie land and was not fenced. The court permitted plaintiff to prove that the whistle was not blown nor the bell rung on the train, and against defendant's objection admitted evidence in regard to the speed of the train. The court, at the instance of plaintiff, declared the law to be as follows: “ First, that the defendant, its servants and agents in the control of its train, were bound to use reasonable care in the management of its train to avoid doing injury to stock on its road, and if the court, sitting as a jury, should believe from all the evidence and circumstances proved in evidence, that the defendant, its servants and agents, could by the use of reasonable care and diligence have avoided killing plaintiff's mare, it ought to find a verdict for plaintiff; second, although the court may find from the evidence that said mare did stray upon said railroad at a point where defendants were not bound...