Cox v. The Atchison, Topeka & Santa Fe Railroad Company

• Decision Date: 21 May 1895
• Citation: 31 S.W. 3,128 Mo. 362
• Parties: Cox v. The Atchison, Topeka & Santa Fe Railroad Company, Appellant
• Court: Missouri Supreme Court

31 S.W. 3

128 Mo. 362

Cox v. The Atchison, Topeka & Santa Fe Railroad Company, Appellant

Supreme Court of Missouri, Second Division

May 21, 1895

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

Gardiner Lathrop and Samuel W. Moore for appellant.

(1) The law providing for the selection of petit juries in counties containing a city of more than fifty thousand and less than three hundred thousand inhabitants (acts of 1891, p. 172), is in violation of section 53 of article 4 of the constitution of this state, which prohibits special or local legislation in reference to the "summoning or impaneling grand or petit juries." State ex rel. v. Miller, 100 Mo 438; State ex rel. v. Board, 89 Mo. 237; Rutherford v. Heddens, 82 Mo. 388; State v Kring, 74 Mo. 612; State ex rel. v. Hammer, 42 N. J. L. 436. (2) Where, as here, the undisputed testimony is that the point where the animals went upon the track could not be fenced without endangering the lives and limbs of employees in the transaction of the company's business at the station, the court should direct a verdict for the defendant. Pearson v. Railroad, 33 Mo.App. 543; Jennings v. Railroad, 37 Mo.App. 651; Railroad v. Willis, 93 Ind. 507; Kneadle v. Railroad, 19 Am. and Eng. R. R. Cases, 568; Lloyd v. Railroad, 49 Mo. 199; Allen v. Railroad, 5 Am. and Eng. R. R Cases, 620; Snow v. Railroad, 8 Allen, 441; Lewis v. Railroad, 59 Mo. 495; Crenshaw v. Railroad, 54 Mo.App. 233; Wright v. Railroad, 56 Mo.App. 367; Grant v. Railroad, 56 Mo.App. 66; Webster v. Railroad, 57 Mo.App. 451. (3) On duty to direct a verdict. Morgan v. Durfee, 69 Mo. 469; Jackson v. Hardin, 83 Mo. 185; Fitzgerald v. Barker, 96 Mo. 666; Landis v. Hamilton, 77 Mo. 534; Powell v. Railroad, 76 Mo. 80; Reichenbach v. Ellerbe, 115 Mo. 595.

J. A. Prewitt for respondent.

(1) The act of the legislature (Acts, 1891, page 172) providing for the selection of petit juries in counties containing, or which may hereafter contain, a city of more than fifty thousand inhabitants and less than three hundred thousand inhabitants is not in violation of section 53, article 4, of the constitution of this state, which prohibits special or local legislation in reference to summoning or impaneling grand or petit juries. Lynch v. Murphy, 119 Mo. 164; State ex rel. v. Miller, 100 Mo. 438; Rutherford v. Hamilton, 97 Mo. 543; Ex Parte Swann, 96 Mo. 44; State ex rel. v. Pond, 93 Mo. 606; State v. Hayes, 88 Mo. 347; Ewing v. Hoblitzelle, 85 Mo. 64; Rutherford v. Heddens, 82 Mo. 388; State ex rel. v. Tolle, 71 Mo. 645. (2) Plaintiff, upon his testimony, was prima facie entitled to recover in his action. Lepp v. Railroad, 87 Mo. 139; Morris v. Railroad, 58 Mo. 78; Wymore v. Railroad, 79 Mo. 247; Chouteau v. Railroad, 28 Mo.App. 556; Russell v. Railroad, 26 Mo.App. 368. The trial court committed no error in refusing to direct a verdict for the defendant in this case. (3) Where, as here, exemption from liability is claimed on the ground that the railroad company could not have fenced its right of way at the point where the animals came upon the track without endangering the lives and limbs of its employees in the transaction of the company's business, the burden of proving the necessity for leaving its tracks unfenced and unguarded is cast upon the railroad company. Hamilton v. Railroad, 87 Mo. 85. And the issue on that point being a mixed question of law and fact, must be submitted to the jury. Crenshaw v. Railroad, 54 Mo.App. 236; Bean v. Railroad, 20 Mo.App. 641. And whether or not the necessity exists is not left to the discretion of the railroad company. (4) Where, as here, there is a conflict in testimony on that point, whether the conflict is direct or inferential, when considering the testimony in the whole the issue should be submitted to the jury. Johnson v. Railroad, 27 Mo.App. 379; Straub v. Eddy, 47 Mo.App. 189; Pearson v. Railroad, 33 Mo.App. 543.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This is an action to recover double damages for killing two cows, the property of plaintiff, by the locomotive and cars of the defendant. Two questions were presented for review: First, the constitutionality of the act of 1891, providing for the selection of petit jurors in counties containing more than fifty thousand and less than three hundred thousand inhabitants; secondly, the action of the trial court in refusing to direct a verdict for defendant upon the testimony.

I. If defendant is right in its claim that a demurrer to the evidence should have been sustained, then the constitution of the jury will be immaterial.

The plaintiff offered evidence of his ownership; that the cows were in his pasture near the railroad track; that they tore down the fence about two hundred yards from the track; that the road was unfenced where they got on the defendant's track; that the cow was reasonably worth $ 75 and the heifer, $ 50. Indeed, there is very little conflict in the evidence, except upon one point, and that was whether or not defendant could have erected and maintained fences and cattle guards any nearer Courtney station than they were erected at the time of the injury to plaintiff's cattle, and at the same time have avoided endangering the lives of its employees operating its trains.

Plaintiff testified on direct examination:

"I noticed some cow tracks coming up on the railroad right of way. I detected it very plainly. There had been a rain and you could see where they went down on that dirt, that top dirt where they had been walking in the fresh fill. That was uninclosed land; some in cultivation and some of it in weeds. I found one of the cows lying on the south side of the track and the other was dragged right up here" (indicating on plat). "It is a quarter of a mile, I guess, from the station of Courtney down there, very nearly -- somewhere along there. I could not say exactly, but it is a long ways. And right about here" (indicating on the plat) "the road put in cattle guards since the cattle were killed. There were no streets or public crossings at the point where the cows were killed. The cows were killed in Blue township, Jackson county, Missouri."

On cross-examination, plaintiff testified:

"There is a pit dug out, I suppose it is a cattle guard, on the east at Mr. Stewart's, where the fence begins. They are not cattle guards; they are just ditches. A dug out place, maybe, for cattle guards, I reckon; I don't know what you call it: it is a dug out place -- a sink hole. The cows were not struck by the train inside the switch. Courtney has three houses in it. They have no mayor. There are two families living there besides the depot. There are no streets crossing the track at Courtney. The public road crosses here, and at the stock yards is a little place to cross -- a man fixed it up himself. If there are any streets laid out, they are not opened. There was no scale track at Courtney, and the yards were not built when my cattle were killed. The cattle were killed a few feet east of where the end of the house track now is. It was not there when they were killed."

On redirect examination plaintiff testified:

"The tracks were found by me going on the railway right of way east of the switch, and the cattle were found about one third the way from the terminus of the switch to the cattle guard or sink hole on the east. It is about one hundred and forty yards from the terminus of the switch to where the fence begins. The land where the tracks were seen is open. There is open land between Stewart's and the switch; there is a big place in there -- farmers use it; it is not fenced. They came up here before they got to the track. This is the place" (indicating on plat) "where they come along; blood was sprinkled on the rails. The old cow was lying across the south side. You could see the blood on the ties. It looked like they dragged the heifer; she was up over there on the north side. We traced the blood before we reached the long switch. I had a contract with Mr. Courtney. I rented his farm."

B. F. Bush testified for plaintiff, on direct examination, as follows:

"I know something about the circumstances of the killing of the two cows belonging to G. L. Cox.

"Q. Is this a correct plat of the location of the ground of the railroad switches, etc., around Courtney? A. That seems to be pretty correct.

"Q. Whereabouts was it, with reference to the railroad track, you found those cows? A. The one that was dead was lying on the left hand side of the track, right about where the switch here sets in. The other one was lying just between the house switch and the main track on the side.

"Q. Just indicate where you found the old cow; make a little mark, so that it can be identified afterwards? A. The cow was lying on that side. I don't know whether she was knocked off from the road; she was lying there, dead. The other one was just inside the house track. She was lying right there," (indicating). "It is probably fifty or sixty yards from the terminus of the long switch to the cattle guards on the east. It is all open land from the cattle guards on the east. I got there one half or three quarters of an hour after the cattle were killed, and Mr. Cox was there. We went to see where the cows had been killed and where they had been walking and everything. There had been a rain a short time before that and the ground was soft and we saw the tracks where they had walked up the railroad track and where they had got on the railroad track on the south side of the track. They had got on the ground where there was not any fence enclosing. We could see where they walked through the weeds and through the brush. They had come out and got on the railroad track and were walking on the railroad track...