Conrad v. Illinois Southern Ry. Co.

• Decision Date: 13 February 1906
• Citation: 92 S.W. 752,116 Mo. App. 517
• Parties: CONRAD v. ILLINOIS SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

92 S.W. 752

116 Mo. App. 517

CONRAD v. ILLINOIS SOUTHERN RY. CO.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

RAILROADS — KILLING STOCK — FAILURE TO FENCE—EVIDENCE—QUESTION OF FACT.

Whether a railroad company, sued for the killing of an animal on its track, negligently failed to construct a proper fence and cattle guards, held under the evidence a question of fact for the determination of the trial court.

Appeal from Circuit Court, St. Francois County; Robert A. Anthony, Judge.

Action by William H. Conrad against the Illinois Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

William S. Anthony, for appellant. D. L. Rivers, for respondent.

GOODE, J.

This action was instituted to recover the value of a cow killed by one of the appellant's locomotives. The accident happened in Randolph township, St. Francois county. The evidence tended strongly to show that though the railroad right of way was fenced where the animal was killed, and continuously through the township, the fence did not conform to the statute on the subject. The posts were 16 feet apart, so far apart that the wires sagged. The animal was killed about 150 yards from the crossing of the public road. There were cattle guards constructed at this crossing, but the evidence of the plaintiff was that they were so made as not to turn cattle, but stock could walk over them at will. No declarations of law were asked by either party except one, by the railroad company, that on the evidence the plaintiff could not recover. The court found judgment for the plaintiff.

The point raised on the appeal is that the evidence showed the statute was complied with by the railroad company, and therefore it is not liable for the death of the animal. This contention certainly cannot be maintained. The testimony on the subject was highly contradictory in respect to the cattle guard. Even the defendant's testimony regarding the fence, though it tended to show the fence would turn stock, showed it was not built as the law required. The point raised on the appeal involves the determination of the weight of the testimony, which is a matter for the trial court, not for this one.

The judgment is affirmed.

BLAND, P. J., and NORTONI, J., concur.