Dees v. St. Louis & S. F. R. Co.

• Citation: 127 Mo. App. 353,104 S.W. 485
• Parties: DEES v. ST. LOUIS & S. F. R. CO.
• Decision Date: 23 September 1907
• Court: Missouri Court of Appeals

104 S.W. 485

127 Mo. A. 353

DEES v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

September 23, 1907.

RAILROADS — KILLING ANIMALS — EVIDENCE.

Evidence held to sustain a finding that plaintiff's mare, which strayed from plaintiff's pasture upon defendant's adjoining unfenced right of way, was killed by collision with one of defendant's trains.

Appeal from Circuit Court, Wayne County; Jos. J. Williams, Judge.

Action by R. L. Dees against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. F. Parker and James Orchard, for appellant. O. L. Munger, for respondent.

NORTONI, J.

This suit is for double damages under section 1105, Rev. St. 1899 [Ann. St. 1906, p. 945], against the railroad for the killing of plaintiff's mare. The petition is in the usual form, and alleges, in substance, the defendant was operating its locomotives and trains at a point where its road passes through inclosed lands, and where defendant was required to, but had failed and neglected to, fence its right of way, in consequence of which neglect plaintiff's mare came upon the track and was killed. The trial was had before a jury in the circuit court, and plaintiff recovered. Defendant appeals.

The only error assigned is that the evidence is insufficient to support the verdict, and the court erred in refusing to peremptorily direct a finding for defendant. On the part of plaintiff, it appears in proof by the evidence of several witnesses that defendant's railway passes through plaintiff's farm and adjacent to his pasture. At the time in question, it maintained no fence along the sides of its right of way next adjacent to the pasture. That on November 2d plaintiff turned his mare into the pasture, as was his custom, some distance from the railroad. The animal was then sound in body and in good order in every respect. Thereafter, that evening, two trains passed over the road. Plaintiff's mare was found the following morning lying dead upon defendant's right of way, about 18 or 20 feet from the track. She was much swollen, and several bruises and abrasions were on her head and body, indicating a collision. One bruise, or abrasion of the skin, rather, was upon the head between the eye and the ear; another was on the hip; and a third, and apparently the most serious, was a bruised cut on her side near the flank, said to be from four to six inches wide, and about twelve inches in length. There was at this point on the body a...