Joseph Clark's Adm'x v. Hannibal & St. Joseph R.R. Co.

• Citation: 36 Mo. 202
• Parties: JOSEPH CLARK'S ADM'X, Respondent, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Decision Date: 31 August 1865
• Court: United States State Supreme Court of Missouri

36 Mo. 202

JOSEPH CLARK'S ADM'X, Respondent,

v.HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

August Term, 1865.

Appeal from Livingston Circuit Court.

The facts of the case are stated in the opinion.

After the evidence for plaintiff and defendant was closed, the court was asked to charge the jury as follows.

The plaintiff moved the court to declare the law to be--

1. That if, in the construction of said road, the laborers, agents or employees of said railroad, in the employment of defendant in 1857, threw down the fence around plaintiff's field of corn, at a point more than fifty feet from the centre of said railroad track, and left the same down, and that, by reason thereof, cattle, hogs, &c., entered into said field of corn and damaged or destroyed the same, the jury will find for the plaintiff the value of the corn so destroyed, or the value of the damage so done.

2. That if defendant, its agents, or employees, neglected to erect and maintain fences on the sides of said road, where the same passes through said enclosed field of plaintiff, of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm-crossings of the road, for the use of said proprietor of the adjoining land, and that, in consequence thereof, cattle, hogs and stock got into said field and destroyed or damaged said crop of corn or said crop of wheat, that the jury will find for the plaintiff the value of the corn or wheat so destroyed, or the value of the damages so done.

3. That if laborers, agents, or servants, in the employ of defendant, while grading said road, negligently threw up embankments of earth on the west side of said farm of plaintiff, thereby damming up the water and causing the same to change its channel and overflow a part of said field outside of defendant's right of way, and thereby rendered the same unfit for cultivation, the jury may assess the damage thereby sustained.

4. That if the laborers, agents, or servants, in the employ of defendant, while laying the track of said road, threw down the fence around plaintiff's field of wheat in 1859, at a point more than fifty feet from the centre of said railroad track, and left the same down, and neglected to erect and maintain a fence on each side of said road in said enclosure, and that by reason thereof the said field of wheat was left unprotected from entry by cattle, hogs and stock, and that plaintiff's crop of wheat was thereby destroyed or damaged, the jury will find for plaintiff the value of the wheat crop so destroyed, or the value of the damage so done.

5. That if, in grading said road, the agents, laborers, or servants, in the employ of defendant, threw up heaps of earth on said farm, outside of defendant's right of way, and thereby injured the same, or deposited heaps of dirt in a private road of plaintiff's, outside of their right of way, leading from his residence to the public highway, and thereby obstructed the same, the jury may assess the damage so sustained thereby.

6. That if defendant, by his agents, servants, or employees, caused a locomotive with cars attached to run over and kill plaintiff's calves, or cow, or sow, the jury may find for plaintiff the value of such stock so killed, provided the same was done on a part of the road not enclosed, and not at a crossing of a public highway.

7. That if the jury believe from the evidence that the work performed on the Hannibal and St. Joseph Railroad was executed under the direction and constant supervision of the Hannibal and St. Joseph Railroad Company, their officers or engineers, and that said railroad company had the power through its officers or engineers to control and direct the laborers and employees on the road in conducting their work, they will find for the plaintiff to the amount of damage sustained by him from the acts, negligence or omissions of said laborers, whether the laborers were employed by John Duff & Co., Shea & Griffin, or other sub-contractors, instead of the Hannibal and St. Joseph Railroad Company.

8. That if the jury find for the plaintiff in any sum, they may in their discretion allow interest on the amount so found by them as damages.

The court instructed the jury:

1. It is admitted by the defendant, that in the years 1857 and 1859 the defendants, its agents, or employees failed to erect and maintain fences on the sides of their railroad, where the same passes through said enclosed field of plaintiff, of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm-crossings of the road, for the use of the proprietors of the adjoining land.

2. It is also admitted by the defendant, that the defendant by his agents, servants, or employees, caused a locomotive with cars attached to run over and kill plaintiff's calves, cow and sow, and that the same was done on a part of the road not enclosed, and not at a crossing of the public highway, and that their value was forty-five dollars, and also admits that they were killed in plaintiff's field.

The court further instructed the jury, that, for the purpose of trial, defendant admitted that Joseph Clark, deceased, owned the land mentioned in plaintiff's petition.

Defendant admitted that the stock mentioned in plaintiff's petition was killed on that part of the railroad in plaintiff's field, and that the railroad running through said field was not fenced on either side it said field.

Defendant admits that Catharine Clark is administratrix of Joseph Clark, deceased.

To the giving of which instructions the defendant at the time excepted.

The defendant then asked the court to give the following instruction? to the jury:

1. If the jury believe from the evidence that the laborers under Patrick Cochran threw down and left down the fence, described in the first count in said petition, while grading the defendant's road through said field, whereby the hogs and other animals got into said field and destroyed and injured the corn therein, they will find for the defendant on said count, unless they further believe from the evidence that the defendant, or some of its officers or its agents authorized so to do, directed said laborers to throw down or leave down said fence.

2. If the jury believe from the evidence that defendant's railroad was located and constructed through the land of plaintiff's intestate, described in the petition, and that the damages resulting from said location and construction to said intestate were assessed at six hundred dollars by three discreet, disinterested citizens of Livingston county, and a judgment rendered thereon by the clerk of this court and said judgment paid by the defendant, and that the field described in the second count in said petition was overflowed and the water dammed up by reason of the embankment described in said petition, the said assessment and judgment thereon embraced all the damages resulting from the location and construction of said road through said land, and the plaintiff cannot recover any damages for the damming and overflowing of said land by reason of the embankment, as alleged in the second count of plaintiff's petition. and they will find for the defendant on said count.

3. If the jury believe from the evidence that the teamsters and persons hauling bridge timber for Grand river bridge drove out on the wheat growing in the field described in the count in said petition, and thereby injured said wheat, they will find for the defendant on said count, unless they further find that the defendant, or its officers or agents authorized so to do, directed said teamsters and persons so hauling said bridge timbers so to do.

4. If the jury believe from the evidence that defendant's railroad was located and constructed through the land of plaintiff's intestate described in the petition, and that the damages resulting from such location and construction to said intestate were assessed at six hundred dollars, and judgment rendered therefor by the clerk of this court and paid by the defendant, and that the private way described in the fourth count in said petition was obstructed by the laborers working on defendant's railroad depositing earth excavated from said railroad on said private way, then the damages resulting from the depositing of said earth in said private way were included in said assessment and payment of damages, and the plaintiff cannot recover anything therefor, and the jury will find for the defendant on said count.

5. If the jury believe from the evidence that plaintiff's intestate was paid $600 damages for the right of way through his land, the duty of erecting a fence on each side of defendant's railroad, where it passes through the enclosed field described in the petition, was thereby devolved on the said intestate; and if he neglected to erect such fence, and cattle and hogs got into said field for want of such fence, the jury will find for the defendant as to all damages done for want of such fence.

6. The jury are instructed, in this case, that the defendant is a common carrier of passengers and property, and as such it is bound to carry with speed and safety all passengers and property, offered to it, to their destination along its railroad, unless it has reasonable excuse for not doing so; and that the paramount duty of its agents and employees, in running a train over said road, is to look first to the safety of the persons and property upon the trains.

7. And if the jury in this case believe from the evidence that the stock sued for was struck and killed or injured by the defendant's locomotive or cars, and that the engineer in charge of the locomotive, with due and proper regard to the paramount obligation which the defendant was under, could not have prevented the locomotive from striking any of said stock, they will find for the defendant.

8. If the jury believe from the evidence that the stock sued for in this case was killed or injured in an...