Logan v. St. Louis, M. & S. E. Ry. Co.

• Decision Date: 04 April 1905
• Citation: 86 S.W. 565,111 Mo. App. 674
• Court: Missouri Court of Appeals
• Parties: LOGAN v. ST. LOUIS, M. & S. E. RY. CO.

86 S.W. 565

111 Mo. App. 674

LOGAN v. ST. LOUIS, M. & S. E. RY. CO.

St. Louis Court of Appeals. Missouri.

April 4, 1905.

RAILROADS — FAILURE TO FENCE — INJURY TO STOCK—ACTION—EVIDENCE—SUFFICIENCY.

1. Rev. St. 1899, § 1105, giving the owner of stock double damages for the killing or injuring of the same by the cars or engines of a railroad which has failed to fence its track as required by the statute, contemplates an actual collision between the locomotive or train and the animal.

2. In an action against a railroad company under Rev. St. 1899, § 1105, giving the owner of stock killed or injured by the cars or engines of a railroad company which has failed to fence its track as required, double damages, evidence considered, and held insufficient to show a collision between a train and the injured animal.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by Oliver Logan against the St. Louis, Memphis & Southeastern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed in part.

This action was commenced in the circuit court of Stoddard county. The petition is in four counts, and prays double damages for the killing and injuring of stock, under the provisions of the double-damage statute (section 1105, Rev. St. 1899). The petition is in the usual and approved form. The first count is for the killing of one red heifer, of the alleged value of $12, December 24, 1903. The second count is for injuries to one red bull (alleged damages, $20) March 31, 1903. The third count is for the killing of one red steer (alleged damages, $16) May 12, 1903. The fourth count is for the killing of one hog (alleged damages, $8) November 27, 1903. The answer was a general denial. The case was tried before a jury in the circuit court. The evidence on the part of the plaintiff tended to show, and did show, that, at the various points where the animals mentioned were injured or discovered after injury, the railroad was unfenced; that it passed through and along adjoining uninclosed timber lands. None of the injuries occurred within the switch limits of any city, town, or village, nor at the crossing of any public or private road. The evidence is very meager on the issues raised on all of the counts. The evidence tending to support the first and third counts is really inadequate to support the finding thereon. It is in substance as follows: Plaintiff had missed the heifer. He had stock running unmarked in the neighborhood of the railroad. Plaintiff and witness Amos Smith found the heifer buried near the railroad track. It had evidently been buried several days. They partially exhumed it, and plaintiff was quite certain it was his heifer. Does not positively identify it, but says he never saw or heard of his heifer afterwards, and is quite certain this one was his property. On this count there is no evidence showing that railroad trains were operated at the point where the heifer was found, nor at any other point on the railroad. There was nothing to show any signs of cattle having been on the right of way, nor that stock alarms were recently given by passing trains, nor that trains had recently passed, nor is it shown that a railroad was in operation at the point mentioned at all. The record is barren of either direct or circumstantial evidence tending to show that this heifer was struck and injured by the railroad locomotive or trains. There must be some evidence of some kind of a collision. The evidence tending to support the second count was to the effect that a bull owned by plaintiff was injured to the extent alleged in the petition, and for which recovery was had. Mrs. Fry, a witness, passing, testified that he was knocked off there into the mud and water, and that he was dripping when she saw him, and tells of the passing train. The evidence on the third count, with regard to the injury and subsequent death of the red steer, is to the effect that witness found the steer from 125 to 175 yards from the railroad. Its injury was described by witness as follows: "Why, his leg was broken, for one thing, and the bone run out of it, and it was in bad shape, and had the appearance of being done for a couple of days. It was bruised up like it had been run into by something, and, the fact of the business is, it looked like the cars had run into it." The evidence was that the steer died there. There was no evidence, either direct or circumstantial, tending to show that the steer had ever been upon the railroad track...