McGuire v. Missouri Pacific Ry. Co.

• Decision Date: 22 November 1886
• Citation: 23 Mo.App. 325
• Parties: R. F. MCGUIRE, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

23 Mo.App. 325

R. F. MCGUIRE, Respondent,

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 22, 1886.

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.

Affirmed.

The case is stated in the opinion.

ADAMS & BOWLES, for the appellant.

I. The finding upon the issue presented by the defendant and submitted by the court to the jury, should have been direct and positive. Morrow v. Commissioners, 21 Kas. 484.

II. The court erred in refusing to require the jury to find specifically upon the issue submitted. Railroad v. Perry, 34 Kas. 483; Bohler v. Ranch Co., 31 Kas. 502; Morrow v. Commissioners, supra.

III. Proof that there was no fence at point where the sheep entered upon track and were killed is not sufficient to support the judgment. Harrington v. Railroad, 71 Mo. 384; Berry v. Railroad, 65 Mo. 152. Johnson v. Railroad, 80 Mo. 620; Peddicord v. Railroad, 85 Mo. 160.

GREEN & PERKINS, and JAS. H. HARKLESS, for the respondent.

I. Where stock are found killed on the railroad track at a point where the company is required to fence, and there is no evidence where they got on the track, it will be presumed they got on the track where they were killed. Jantzen v. Railroad, 83 Mo. 171.

II. On the word “believe,” examine Johnson v. Dispatch Co., 2 Mo. App. 565; Brick Co. v. Railroad, 21 Mo. App. 648, as contained in the special verdict in this case.

ELLISON, J.

This action was begun before a justice of the peace to recover double damages under section 809, Revised Statutes, for killing thirty head of plaintiff's sheep and injuring others. Judgment was rendered by default before the magistrate, when defendant appealed to the circuit court of Jasper county, where, on trial, judgment was again rendered for plaintiff, defendant appealing to this court.

Among other instructions asked by defendant was the following, to-wit.

“The court instructs the jury to return as a special verdict an answer to this question: At what point did these sheep get on the railroad track? and answer and return said special verdict, signed by your foreman, in addition to your general verdict.” Under this instruction the jury, in addition to a general verdict, brought in a special verdict as follows: “We, the jury, believe the sheep got on said railroad track at a point,” etc.

There are two objections against the action of the trial court, which have been brought specially to our attention. First, it is stated that, as the evidence fails to show at what point on the track the sheep strayed thereon, so that it might be seen whether it was a point at which the company was bound to fence, the judgment cannot be supported. The evidence does fail to show the point of entrance, but it clearly appears that the point where the sheep were killed was such an one as the law requires to be fenced. The facts in this case bring it fairly under that of Jantzen v. Ry. Co. (83 Mo. 171). It is there said that “There is no express statement in the testimony that the cow entered...