Deal v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 684,129 S.W. 50
• Parties: DEAL et al. v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

129 S.W. 50

144 Mo. App. 684

DEAL et al. v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. DAMAGES (§ 112) — MEASURE — GROWING CROP — DESTRUCTION.

The owner of a growing crop, negligently destroyed, is not limited to nominal damages, where the trial is after the season, so that the probable yield can be estimated fairly accurately, but may recover the value of the crop, when destroyed, but no more.

2. DAMAGES (§ 217) — DESTRUCTION OF CROPS — INSTRUCTIONS.

In an action for negligently destroying a crop, an instruction that plaintiff could recover the value of the first crop when it was destroyed and the reasonable cost of planting a second crop, less the market value of the second crop, less the reasonable cost of cultivating, gathering, and marketing the same, or the market value of what the first crop would have been if allowed to mature, with the reasonable cost of planting the second crop less the reasonable market value of the second crop and the cost of cultivating, gathering, and marketing the same, was objectionable as tending to confuse the jury.

3. RAILROADS (§ 113) — RIGHT OF WAY FENCES — FAILURE TO MAINTAIN — LIABILITY.

A railroad company, being required to maintain a lawful fence along its right of way, is liable for the loss of a crop caused by stock entering the field through a defective fence.

4. RAILROADS (§ 114) — INJURY TO ADJOINING CROPS — BURDEN OF PROOF.

One suing a railway company for injury to a crop resulting from the company's failure to maintain a lawful fence along its right of way must prove the amount of his damages.

5. DAMAGES (§ 112) — MEASURE — GROWING CROPS — DESTRUCTION.

The value of a growing crop, negligently destroyed, may be shown by proving what the matured crop would have been, and deducting from that value the cost of bringing to maturity, harvesting, and marketing, against which may be shown the net profit on a second crop, planted and marketed after loss of the first.

6. EVIDENCE (§ 488) — OPINIONS — VALUE OF CROPS.

Where an action for the destruction of a growing crop is tried after the growing season is past, so that there is a foundation for an estimate of the value of the crop. and in its growing condition the crop is without market value, opinion evidence is admissible to show its value.

7. EVIDENCE (§ 502) — EXPERTS — CROSS-EXAMINATION.

It is proper, on cross-examination of one testifying to the value of a growing corn crop, to show the facts upon which he based his opinion in order to test its value and accuracy.

8. RAILROADS (§ 103) — RIGHT OF WAY FENCES — SUFFICIENCY — "RESIST STOCK" — "TURN STOCK."

Under the statute which requires railroad companies to maintain fences sufficient to "resist horses, cattle and live stock," an instruction that a company was required to maintain one sufficient to "turn stock" was not improper; the quoted terms being synonymous.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by W. H. Deal and another against St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

See, also, 129 S. W. 52.

Action under the double damage act for destruction of a growing crop of corn by hogs that entered the field through a defective fence maintained by the defendant along its right of way. Trial by jury, verdict for plaintiff for $275, which was doubled by the court, and judgment rendered for $550. Defendant has appealed, and its contention is that, under the evidence developed in the case, nothing more than nominal damages should have been recovered, and that the instruction of the court on the measure of damages was erroneous, misleading, and confusing.

The evidence is clear that it was the duty of defendant to maintain a fence at the place where the hogs entered the field, and that the fence was defective, and had been so for a year. Plaintiff Deal was the owner of the land, and Melton was his tenant, who had rented it and was to pay to Deal one-third of the crop as rental. He planted 25 acres in corn in the middle of April, and it was from two to four inches high at the time the hogs destroyed it. He afterwards planted another crop and raised some corn thereon, the amount of which is in dispute in the testimony. There was evidence tending to show what the crop would have produced had it not been destroyed; also the cost of replanting and cultivating the new...