Harrison v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1886
• Citation: 88 Mo. 625
• Court: Missouri Supreme Court
• Parties: HARRISON v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

88 Mo. 625

HARRISON

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from Lafayette Circuit Court.--HON. JOHN P. STROTHER, Judge.

REVERSED.

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

The ruling of the court below, that the plaintiff was entitled to recover the full value of the injured animal, when she made no effort to save it, although she might have done so, or at least utilized it for food and realized from its hide and tallow, was erroneous. Where cattle are not killed by a train on a railroad, it is the duty of the owner to dispose of them to the best advantage. Railroad v. Finnigan, 21 Ill. 646.Graves & Aull for respondent.

Plaintiff notified defendant that she abandoned the maimed and lacerated carcass to them and she did so abandon same and was entitled to recover the entire value of her cow. Jackson v. Railroad, 74 Mo. 526; Case v. Railroad, 75 Mo. 668; Railroad v. Mustard, 34 Ind. 50; Railroad v.Hays, 35 Ind. 173. It was defendant's duty to care for same. Finch v. Railroad, 42 Ia. 304. The case cited by defendant is wholly irrelevant to the present case and is for negligence of servants. Defendant mangled and bruised plaintiff's milk cow, and if she had been required to dispose of the carcass for beef, there is no evidence that she was fit for beef. Railroad v.Ireland, 19 Kan. 405; Railroad v. Lynch, 67 Ill. 149.

RAY, J.

A milk cow, the property of plaintiff, was struck and injured by the engine and cars of defendant and several days thereafter died of the injuries thus received. The railroad was not fenced as required by law where the cow entered upon the track and was struck and injured, and the action is brought under the statute to recover double the damages. The liability of defendant is conceded, and the only question before us is as to the measure of damages. So far as pertinent and material the testimony is substantially to this effect:

The witnesses for plaintiff testify that the cow was of value for milk and butter and for breeding purposes, and their estimates range from sixty-five dollars to one hundred dollars. As to the injuries they say one hind leg was broken between the foot and knee, and that she was also injured in the side. The plaintiff discovered the cow immediately after the injury, and her brother testified that acting for plaintiff he at once notified the railroad that the cow was their property and that they would have nothing more to do with her. The witnesses for defendant put the value at forty dollars, and one or two of them put the damages at twenty dollars, estimating the cow to be only one-half as valuable after as before the injury. The evidence in its behalf tended further to show that the injuries were not of a character to cause the death of the cow, that one hind leg was broken but that there were no other injuries, that she survived for a period of ten days, but being without food or water starved to death. And it further tended to show that the cow was in good condition when injured and that if she had been dispatched promptly after the injury she would have been of value as beef. The jury found for the value of the animal, which they assessed at seventy-five dollars, and plaintiff had judgment in double the amount, from which defendant has appealed. The point made here is that the defendant is not responsible under the evidence for the full value.

If the evidence offered by defendant was true, and of this the jury were the judges, was the plaintiff under the state of facts thus shown authorized to abandon the cow even with notice to the defendant of her intention in this behalf? If not what course should she have pursued? It is the duty of a party to protect himself from the injurious consequences of the wrongful act of another, if he can do so by ordinary effort and care and at moderate and reasonable expense, and for such reasonable exertion and expense in that behalf he may charge the wrong-doer, and where by the use of such means he may limit and prevent further loss he can only recover such loss as could thus be prevented. If a person chooses to make his loss greater than it need have reasonably been, he cannot thereby make his claim on the wrong-doer any greater. 3 Parsons, 178; Field on Damages, 19. The measure of damages in ordinary cases where such property is not entirely lost or destroyed or practically and substantially so, but is only impaired in value or partially destroyed, is the difference between the value before the injury, and immediately thereafter, and reasonable expense incurred or value of time spent in reasonable endeavors to preserve or restore the property injured. Field on Damages, 621; 3 Allen, 594.

In the case just cited where A's horse was injured through the negligence of def...