Gee v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 283
• Parties: GEE v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

80 Mo. 283

GEE

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Madison Circuit Court.--HON. J. H. NICHOLSON, Judge.

AFFIRMED.

Smith & Krauthoff with T. J. Portis for appellant.

Appellant's refused instructions should have been given. Cecil v. Railroad Co., 47 Mo. 246, and cases cited; Luckie v. Railroad Co., 67 Mo. 245, and cases cited; Shearman & Redfield on Neg., § 462; Nance v. Railroad Co., 79 Mo. 196.

B. B. Cahoon for respondent.

Appellant's instructions were properly refused. McFarland v. Rosenberg, 42 Mo. 439; Deere v. Plant, 42 Mo. 45; Walther v. Railroad Co., 55 Mo. 376, 377; Fickle v.Railroad Co., 54 Mo. 225, 226; Aubuchon v. Railroad Co., 52 Mo. 522.

HOUGH, C. J.

This is a suit to recover damages for injuries inflicted, by an engine and cars of defendant, upon a mule belonging to the plaintiff. The plaintiff had judgment before the justice and in the circuit court, and the defendant has appealed. No objection is made in this court to the sufficiency of the statement, and indeed the only matter alleged as error, is the refusal of the court to give certain instructions asked by the defendant, which will be noticed hereafter.

It appears, from uncontradicted testimony, that the mule in question was in a pasture adjoining the right of way of the defendant, and the fence of the defendant separating the right of way from the pasture, was old, decayed and broken in numerous places; the posts were rotten and would not hold nails; in some places the planks were off, or fastened only at one end. Many panels would not sustain the weight of a man, and could be easily thrown down by slight pressure against them. There were bars also, which were defective and insufficient; they would fall down upon being rubbed against, and were sometimes shaken down by the wind. There is not the slightest intimation in the record, that any other fence around the pasture was defective or insufficient. The mule was shown not to be “breachy;” it was not “a jumping mule.” It was last seen at noon in the pasture; and on the following morning at eight o'clock was found near the railroad track badly injured. The testimony tended to show that it was struck by the cars in the night.

The court trying the case without the aid of a jury, declared the law to be, that the defendant was entitled to a reasonable time in which to repair the fence, after notice of any defects therein, before it would be liable for any damages sustained in consequence of such defects. This instruction is more favorable to the defendant than the rule laid down in Clardy v. Railroad Co., 73 Mo. 576, will warrant.

The following declarations of law asked by the defendant, were refused by the court:

3. The court, sitting as a jury, declares the law to be that the defendant is not liable to the plaintiff for injury done his mule by reason of there being no sufficient bars or...