Ehret v. Kansas City, St. Joseph & Council Bluffs Ry. Co.

• Decision Date: 05 January 1886
• Citation: 20 Mo.App. 251
• Parties: JOHN EHRET, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 251

JOHN EHRET, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

January 5, 1886

APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Affirmed.

Statement of case by the court.

This action was begun in the circuit court for the recovery, under section 809, Revised Statutes, of damages on account of the killing of four steers, the property of plaintiff.

The petition stated a good cause of action.

The evidence showed that there was no fence on the east side of defendant's railroad, north or south of the point where a certain public road crossed said railroad. The plaintiff's evidence tended to show that the portion of the public road, where it crossed defendant's railroad in actual use by the public, was ten feet in width, and that for that distance the railroad track was prepared for a public crossing with planks ten feet long. That two of the steers were struck by one of defendant's engines at a point on the railroad track about thirteen or eighteen feet from the south end of said crossing, and that the other two steers were so struck about one hundred, or one hundred and fifty feet from the south end of said crossing. The evidence to this effect was circumstantial, consisting of evidence as to " signs," such as hair and blood and marks on the railroad track; that two of the steers went upon the railroad track from eight to twelve feet south of the end of the crossing, and had walked down the railroad track to the south, for five or six feet, to the point at which they were struck. There was no evidence as to the width of the public road, or as to the part of said road upon which the actual crossing was located. There was no evidence as to the point at which the other two steers got upon the railroad track other than the evidence that they were struck at a point on said railroad track from one hundred to one hundred and fifty feet south of said crossing. For the defendant, the engineer and fireman in charge of the engine which struck the steers testified that they ran into a bunch of five steers standing upon the actual crossing in the public road, viz.: upon the ten feet prepared for a crossing with planks, that the engine knocked two of the steers off of the track a few feet south of the crossing, and that the engine carried two of the steers for about one hundred, or one hundred and fifty feet south of the crossing before throwing them from the railroad track, and that the fifth steer escaped. And the section foreman, in charge of the portion of the railroad track upon which the accident happened, testified that cattle tracks were all around the crossing, and that the steers were struck there. Under this state of proof the court gave the following instruction for the plaintiff:

" The court instructs the jury that if they find from the evidence, that on or about the 29th day of October, 1882 the defendant was running and operating a railroad through Buchanan county, through unenclosed lands, and that, at or about the time aforesaid, at a point on said railroad, where the same was not fenced on the east side thereof, and where the same was not crossed by a public highway, and where said railroad did not pass through the limits of an incorporated city or town, and where the said railroad ran through unenclosed lands, four steers, the personal property of the plaintiff, strayed upon said railroad track, and were killed by the engine of defendant on said road, and that said animals so strayed upon said railroad track, and were killed in consequence of the failure of defendant to erect, or maintain said fence, then the jury must find for the plaintiff, and assess his damages at any sum not exceeding two hundred dollars, that they may believe, from the evidence, was the value of the animals so killed, at the time of the said killing."

And for the defendant gave the following instructions:

" 2. The plaintiff brings this action to recover the value of four steers killed on the defendant's railroad, and bases his right to recover solely on the failure of the defendant to construct fences on the sides of its road to prevent stock from getting upon the track. The defendant does not controvert the fact that the stock were killed, but as a defence claims that said steers were struck while standing on a crossing of a public road, over its track, where it could not fence its road."

" 6. In order to recover, the plaintiff must show by a preponderance of the evidence to your satisfaction that his stock got upon the railroad track at a point on the defendant's track, which was not within the limits of the public road, and that, but for the failure of the defendant to fence the sides of its road said animals would not have been upon its track, and that such striking and injury would not have occurred."

" 7. The court instructs the jury that under the pleadings and evidence, the plaintiff cannot recover in a greater sum than fifty dollars per head for each animal found by the jury to have come upon the railroad, and in consequence thereof, at a point unfenced without the public road, struck and killed upon the defendant's road."

The court refused to give the following instructions asked by the defendant:

" 1. In the nature of a demurrer to the evidence."

" 3. If the jury believe, from the evidence, that plaintiff's cattle, or any of them, were struck by defendant's engine and cars, within the limits of the public road, whether upon the place of actual travel or not, they will find for the defendant as to such cattle so struck within such limits, notwithstanding they may believe, from the evidence, that such cattle, or part of them, may have been carried and thrown by defendant's engine, without the public road limits."

" 4. The court instructs the jury that the word ‘ crossing,’ as used in this case, means not only the planks and wagon-way across defendant's railroad track, but the entire width of the public road, where defendant's railroad crosses the same, whether such railroad was fenced outside of the public road or not, and plaintiff cannot recover for any animals so struck by defendant's engine, or cars, within the boundary line of such public road."

" 5. The court instructs the jury that the maximum width of public roads, as fixed by law, is sixty feet, and the burden of proof is upon the plaintiff to establish by a preponderance of evidence, to your satisfaction, that his cattle mentioned in evidence, were struck by defendant's engine or cars, at a point outside of the legal limits of said public road, where said railroad was not fenced, and unless he has so shown, by evidence, the verdict must be for the defendant."

" 8. In order to overthrow the positive evidence of unimpeached witnesses by circumstantial evidence, such circumstantial evidence must be plain and direct, and must contradict the statement of such witnesses, and admit of no explanation or inference reconciling it with their statements. If, in fact, both their statements and the evidence of such facts and circumstances may be true, then such evidence affords no contradiction."

" 9. If, as to any material fact or facts in this case, unimpeached witnesses have testified, of their actual observation, of such facts, and if such facts, so stated, be not contradicted by evidence, or are not unreasonable, the jury are not at liberty to disregard such evidence, nor to conjecture that another and different statment of facts are true."

E. S. GOSNEY, with STRONG & MOSMAN, for the appellant.

I. The defendant cannot be held liable in an action under section 809, unless it is alleged in the petition, and established by the evidence at the trial, that the stock came upon the track at a point where it was the duty of the defendant to fence its track, in consequence of the failure to perform that duty. Rev. Stat., sect. 809; Cecil v. Railroad, 47 Mo. 246; Bates v. Railroad, 74 Mo. 60; Nance v. Railroad, 79 Mo. 196; Clardy v. Railroad, 73 Mo. 576; Miles v. Railroad, 31 Mo. 407; Cary v. Railroad, 60 Mo. 209.

II. There was an entire failure of proof in both these particulars. Fitterling v. Railroad, 79 Mo. 509; Bothwell v. Railroad, 59 Iowa 192; Marquette v. Railroad, 45 Mich. 51; Branagan v. Railroad, 75 Ind. 490; Wood v. Railroad, 57 Wis. 201; Railroad v. Hudson, 50 Miss. 572.

III. Section 809 did not require defendant to fence across public highways, and defendant cannot be held liable to plaintiff for the injury to his stock at such a point, in an action based on that section. McPheeters v. Railroad, 45 Mo. 22; Sullivan v. Railroad, 72 Mo. 195; Morris v. Railroad, 75 Mo. 367; Edwards v. Railroad, 66 Mo. 570; Geren v. Railroad, 60 Mo. 405.

IV. The failure to fence the track at that point, is immaterial, unless it occasioned the injury. Clardy case, 73 Mo. 576; Harlan case, 65 Mo. 25; Henry v. Railroad, 76 Mo. 290; Lawrence v. Railroad, 42 Wis. 322.

V. The place where the animals were struck, cuts no figure in this case. If, however, it is deemed material, the evidence shows, without conflict, that it was within the public highway. Railroad v. Talbot, 78 Ky. 621; Railroad v. McMillen, 37 Ohio St. 554; Bothwell v. Railroad, 59 Iowa 192.

VI. Defendant's motion for a new trial should have been sustained. The verdict was against all the evidence given in the case. And it was against the law, as declared by the instructions given to the jury. See cases cited.

VII. Defendant's first, third and fourth instructions should have been given. Soward v. Railroad, 30 Iowa 553; Railroad v. Huber, 42 Ind. 172; Walters v. Railroad, 78 Mo. 622; so also its fifth, eighth and ninth instructions; Railroad v. Packwood, supra; Bothwell v. Railroad, supra; Walter's case, supra.

GREEN &...