King v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 14 February 1887
• Citation: 3 S.W. 217,90 Mo. 520
• Court: Missouri Supreme Court
• Parties: KING v. CHICAGO, R. I. & P. Ry. Co.

3 S.W. 217

90 Mo. 520

KING v. CHICAGO, R. I. & P. Ry. Co.

Supreme Court of Missouri.

February 14, 1887.

RAILROAD FENCES — MISSOURI DOUBLE DAMAGE ACT — PLACE OF INJURY — EVIDENCE.

In an action for double damages for the killing of stock, brought against a railroad company under Rev. St. Mo. § 809, the fact that the injury occurred in the township in which the action is brought, or in the adjoining township, as required by Rev. St. Mo. § 2839, must be proved, and in the absence of such proof the defendant is entitled to an instruction in the nature of a demurrer to the evidence.

Appeal from circuit court, Buchanan county.

M. A. Low, for appellant.

RAY, J.

This action was commenced April 16, 1879, before a justice of the peace in Bloomington township, Buchanan county, to recover double damages, under the statute, for killing or injuring two mules and one mare, the property of plaintiff. Plaintiff recovered judgment for double the value thereof before the justice, and defendant appealed to the circuit court, where plaintiff filed an amended statement. The case was dismissed as to the mules, and on a trial of the cause anew in the circuit court, at the September term, 1880, plaintiff recovered a judgment for double the value of the mare, from which defendant has appealed to this court.

The stock was injured during the night, and there were no witnesses to the occurrence. The two mules were found in the public crossing the next morning, and the mare inside the cattle-guards, and near thereto, on the right of way. The fence was built, for the company, by the plaintiff, about a year before this, and seems to have been such a fence as was required by the statute. There is evidence that the top plank had been off, at two different places in the fence, for some time; but plaintiff's own evidence, and that of other witnesses in his behalf, indicated pretty clearly, we think, that the stock got in or broke in through a fresh, break in the fence, made during the night. The plaintiff says he does not know where the stock got on the track, as it was done in the night, but he further says: "At this new break, which showed it had just been made, there was found to be horse hair upon the splinters of the broken plank, and tracks all along between this break and the railroad." To the same effect is the testimony of the witness Clay Dunlap, who further testified he was along the railroad the day before, and that there was no break in the fence where this fresh...