Lynn v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 01 April 1912
• Citation: 146 S.W. 451
• Court: Missouri Court of Appeals
• Parties: LYNN v. ST. LOUIS, I. M. & S. RY. CO.

146 S.W. 451

LYNN v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

April 1, 1912.

Rehearing Denied May 6, 1912.

1. APPEAL AND ERROR (§ 994)—CREDIBILITY OF WITNESSES—REVIEW ON APPEAL.

The credibility of witnesses is for the jury; and their finding thereon is conclusive on appeal.

2. RAILROADS (§ 441)—KILLING ANIMALS— ACTION FOR INJURY—BURDEN OF PROOF— PLACE OF ENTRY ON TRACK.

In an action against a railroad for double damages for killing plaintiff's horses, prosecuted under Rev. St. 1909, § 3145, plaintiff has the burden of showing that they entered the railroad right of way at a place where the statute requires fences, which defendant failed to maintain.

3. RAILROADS (§ 443)—KILLING ANIMALS— ACTION FOR INJURIES—SUFFICIENCY OF EVIDENCE.

Evidence, in a statutory action against a railroad for double damages for killing plaintiff's horses, held sufficient to show that the animals entered at a gap on the railroad right of way at a place where it was required to be fenced.

4. RAILROADS (§ 441)—KILLING ANIMALS— ACTION FOR INJURIES — PRESUMPTIONS — PLACE OF ENTRY ON TRACK.

Where the evidence, in a statutory action against a railroad for double damages for killing plaintiff's horses, was that the horses, in order to have reached the point where they were killed, must have entered on the right of way, a quarter of a mile from where they were found, at a gap or opening where the defendant was required to fence, or else must have jumped over the railroad fence opposite the place where they were killed, there was no presumption that they entered upon the right of way at the point opposite where they were killed.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by J. G. Lynn against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. T. Railey, of St. Louis, and N. A. Mozley, of Bloomfield, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

NIXON, P. J.

This is an action under the double damage act for the killing of two of plaintiff's horses. Plaintiff obtained judgment for $700, from which the defendant appealed.

The action was prosecuted under section 3145, R. S. 1909, to recover double damages for the killing of two horses on the 15th day of December, 1910, at a point on appellant's railroad between Poplar Bluff and Harviell, Mo., where, it is alleged, the defendant was required to maintain lawful fences, and had failed to do so. The horses were found dead on the right of way, midway between Poplar Bluff and Harviell. The nature of their injuries was evidence of their having been struck by the cars. A quarter of a mile or more south of where said horses were found, at a crossing over the railroad track, defendant was at the time constructing a side track, and a portion of the wing fence connecting the cattle guard with the lateral fence had been removed for that purpose, and there was an open gap in the fence along the right of way. The place where the horses were found was seven or eight miles from plaintiff's home, which was south of said point and three miles east of the railway track. Plaintiff claimed to have bought these horses somewhere in Butler county, on the public road, from a man traveling through the state, and that they were therefore strange horses in the community. He stated that he took them to his home and turned them loose on the commons; that they ranged around his place for about a month, and then, according to his idea, undertook to go back to the place where he bought them from the stranger passing through the state.

Some adverse comment is made by appellant on plaintiff's testimony as to how much he paid for the horses; but that was properly a question for the jury, and appellant must abide by their decision.

The evidence offered in this case at the trial tended to show the following state of facts: The town of Harviell and the city of Poplar Bluff are about six or seven miles apart, being the stations on defendant's railroad north and south of where plaintiff's animals were killed. The railroad between these two stations runs north and south. About half-way between these stations, the railroad is crossed by a public county road that runs east and west. Two miles farther north the railroad is crossed by another public road that runs east and west. Between these two public roads, and on each side of the railroad, are cultivated fields. This block of defendant's right of way consists of a stretch of land 100 feet wide and 2 miles long. The nearest that this block of the defendant's right of way comes to the corporate limits of any city, town, or village is 1½ miles from the corporate limits of the city of Poplar Bluff.

Under the statute, it was the duty of the defendant to erect and maintain cattle guards and wing fences connecting with its lateral fences along the northern boundary of the public road on the south end of this block of its right of way. It was also its duty to maintain lateral fences between its right of way and the fields on either side up to the north end of this block. It was also the duty of the company to erect and maintain cattle guards and wing fences connecting with its said lateral fences along the southern boundary of the public road on the north end of this block of its right of way. If the company had performed these duties, it would have fenced a tract of land in Butler county in the shape of a parallelogram 2 miles long and 100 feet wide. Now it is conceded that it was the duty of the defendant to erect and maintain lawful fences, except where cattle guards were necessary (and at such places to erect and maintain lawful cattle guards), on all sides of this parallelogram of land belonging to the defendant. It follows as a matter of course that a horse could not have gotten...