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

• Decision Date: 31 October 1885
• Parties: LEPP v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

87 Mo. 139

LEPP

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

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jefferson Circuit Court.--HON JOHN L. THOMAS, Judge.

AFFIRMED.

Geo. H. Benton for appellant.

The court erred in its instructions to the jury, and in refusing to instruct the jury as requested by defendant. Walthers v. Ry., 78 Mo. 671; Morris v. Ry., 79 Mo. 371; Rowland v. Ry., 73 Mo. 619; Edwards v. H. & St. J. Ry., 66 Mo. 567; Green v. Ry., 60 Mo. 405; Cousin v. Ry., 66 Mo. 567; Elliott v. Ry., 66 Mo. 683; Campbell v. Ry., 78 Mo. 642.

J. W. Pipkin for respondent.

The court did not err in its instructions to the jury, nor in refusing defendant's instruction and its demurrer to the evidence. Wade v. Ry., 78 Mo. 362; Rowland v. Ry., 73 Mo. 319. The plaintiff made out a prima facie case, and the burden of proof was upon the defendant to show that the cow was killed within the switch limits or within the limits of an incorporated town.

BLACK, J.

Suit for double damages under section 809, Revised Statutes, 1879, for killing a cow. The suit was commenced in a justice's court. On trial in the circuit court the evidence showed that the railroad, and its parallel switch, run north and south, at Vineland station. The switch extended both ways from the depot. The cow was thrown from the track by the cars at a point about a quarter of a mile south of the depot, and thirty to forty yards south of the southern end of the switch. She was found with one leg broken at that point, and from twenty to thirty yards west of the railroad. There was a board fence at this point, on the east side of the road, a half a mile in length, but at what point it began on the north, is not shown. On the west side of the road, where the cow was thrown off, there is no fence. Vineland is a small place, and the buildings are south and east of the depot. One witness says “There was a sign where she hit the ground; don't think there was any blood there; there was no sign there except where she scrambled off; the mark I saw was toward the south.” Plaintiff lived, or there is evidence tending to show he lived, thirty-five or forty yards south of the depot. There is evidence of one house on the west side of the depot.

At the request of the plaintiff the court instructed the jury “that if you believe from the evidence in this cause, that the cow in question strayed upon defendant's track in Valle township, Jefferson county, Missouri, at a point where the railroad runs along or by unenclosed fields, and where there was no road crossing, or depot, or switch, and where there was no fence on one side of said road, and that said cow strayed upon said track, because there was no fence on one side thereof, and was there killed by defendant's cars, then you will find the issues for the plaintiff.”

The court overruled a demurrer to the evidence, and refused to give, at the request of the defendant, the following instruction: “If the jury believe from the evidence that the cow in question got on the track at, or near, the residence of the plaintiff, in Vineland, and that it was killed in consequence of going on the track, then they will find for the defendant.”

It is contended, by the defendant, that there is no evidence that the cow did not stray upon the track in a town or city, and if in error as...