Marion v. St. Louis & S. F. R. Co.

• Decision Date: 16 April 1907
• Citation: 124 Mo. App. 445,101 S.W. 688
• Court: Missouri Court of Appeals
• Parties: MARION v. ST. LOUIS & S. F. R. CO. et al.

101 S.W. 688

124 Mo. A. 445

MARION v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

TRIAL — INSTRUCTIONS — WRITTEN REQUESTS.

Under Rev. St. 1899, § 748 [Ann. St. 1906, p. 733], providing that either party may move the court in writing to give instructions on any point of law arising in the cause, and that the court may of its own motion give like instruction, etc., the court in civil cases is not required to instruct the jury except upon written motion of the parties embodying the instructions the mover thinks the court should give.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Luke Marion against the St. Louis & San Francisco Railroad Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

The petition is as follows (omitting caption): "Plaintiff for cause of action states that on the ___ day of ___, 1904, the defendants were and still are corporations running and operating a railroad, and running trains of cars through the township of La Font, in New Madrid county, in the state of Missouri; that on said day the plaintiff was the owner of the following personal property, to wit, six hogs, of the value of $20; that said hogs on said day strayed in and upon the tracks and grounds occupied by the said railroad of defendant, at a point where said road passes through, along, or adjoining inclosed or cultivated fields, or uninclosed lands, at and in the township of La Font, in New Madrid county, Mo., and at a point where said defendants were by law required to erect and maintain good and lawful fences along the sides of their railroad, and to construct sufficient cattle guards, and not a public road crossing, nor within the switch limits of any station, nor within the limits of any incorporated city, town or village. The said hogs on said day strayed and went in and upon the tracks and grounds by reason of the failure and neglect of the defendants to erect and maintain the good and lawful fences aforesaid along the sides of their said railroad, and to construct sufficient cattle guards where said hogs entered upon the same as aforesaid. That defendants, by their agents and servants, run their engine and cars upon and against said hogs at said point in La Font township, in New Madrid county, in the state of Missouri, on the ___ day of ____, 1904, thereby killing said hogs to plaintiff's damage in the sum of $20. Wherefore the plaintiff prays damages in the sum of $40, being double the damages sustained by him, and for costs." The answer admitted defendants were corporations, but denied all other allegations of the petition. Plaintiff's evidence tended to prove the allegations of his petition, and was sufficient to authorize the jury to find a verdict in his favor. There was no countervailing evidence except as to the value of the hogs killed. At the close of the evidence defendants offered a demurrer to the evidence which the court overruled. The court gave the following instruction for plaintiff: "The court instructs the jury that in arriving at their verdict they should take into consideration the evidence as detailed from the witness stand by the witnesses and should not in any way be influenced by statements made to them by the parties outside of the trial of this case." The plaintiff offered no other instructions. Thereupon defendants requested the court to require the plaintiff to present instructions showing upon what ground he sought to recover before the jury, which the court declined to do and to which defendants excepted. Defendants then requested the court to instruct the jury as to the law of the case upon which plaintiff's right of recovery could be based under the evidence and the law, which the court refused to do, and to which defendants excepted at the time, and the jury were therefore left without any instructions on...