Foster v. St. Louis, I.M.&S.R. Co.
| Decision Date | 06 December 1886 |
| Citation | 90 Mo. 116 |
| Court | Missouri Supreme Court |
| Parties | FOSTER v. ST. LOUIS, I. M. & S. R. CO. |
Appeal from circuit court, Mississippi county.
Action to recover double damages for injury to stock. Judgment for plaintiff. Defendant appeals.
H. C. O'Brien, for respondent. T. J. Portis, for appellant.
Plaintiff sued before a justice of the peace, in Mississippi county, for double damages for an injury to his mule, alleged to have been occasioned by the failure of defendant to fence its track at the point where the mule entered upon it. The following is the statement filed with the justice: “Plaintiff states that defendant is a corporation organized and chartered under the laws of Missouri, and is now, and for a long time since has been, running and operating a railroad through Tywappity township, in Mississippi county, Missouri. Plaintiff further states that on or about the month of April or May, 1882, and in the township of Tywappity, in the county of Mississippi, and state of Missouri, and where said road passes along, adjoining, and through uninclosed lands, and where said road was not fenced with a good and sufficient fence, sufficient to prevent horses, mules, hogs, and cattle, and other animals, from escaping and coming on their said track, the said defendant, by means of its agents, engines, and cars, run against and over, and ran in the trestle, one mule, the property of plaintiff, of the value of $125, thereby crippling said mule, and greatly damaging plaintiff, in the sum of $90. Plaintiff further states that the point where said animal was struck was not the crossing of a public highway, and that said animal escaped and strayed and came upon said road by reason of the defendant's negligence in failing to erect and maintain good, sufficient fences on the sides thereof, sufficient to prevent horses, mules, cattle, hogs, and other animals from escaping and coming thereon. Wherefore plaintiff prays that his damage be assessed at $90, and that he have judgment for $180, double the amount of his damage so assessed, as provided for in section 809 of the Revised Statutes of Missouri of 1879, entitled ”Railroad Corporations,“ etc.
Plaintiff had a judgment before the justice, and again in the circuit court, to which the cause was appealed by defendant, which has prosecuted an appeal therefrom to this court.
The plaintiff's own testimony, and that of all the witnesses introduced by him, was to the effect that the mule was of the value of $125, and was damaged one-half of its value. The verdict and judgment were for $100, but plaintiff entered a remittitur for $10, and the judgment then was for $90, which is $35 less than double the damages actually sustained, and double damages he was entitled to recover, if any amount whatever; and...
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