McIntosh v. Hannibal & St. J. R. Co.

• Court: Court of Appeals of Kansas
• Writing for the Court: HALL, J.
• Citation: 26 Mo.App. 377
• Parties: WILLIAM A. MCINTOSH, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Decision Date: 23 May 1887

26 Mo.App. 377

WILLIAM A. MCINTOSH, Respondent,
v.
THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Reversed and remanded.

The case is stated in the opinion.

STRONG & MOSMAN, and GEORGE H. TOWNSHEND, for the appellant.

I. The petition did not state facts sufficient to constitute a cause of action. It failed to allege any facts showing that the defendant was under any obligation to fence its track at the point mentioned. Field v. Railroad, 76 Mo. 614; Parrish v. Railroad, 63 Mo. 284; Sloan v. Railroad, 74 Mo. 47; Bates v. Railroad, 74 Mo. 60; Rowland v. Railroad, 73 Mo. 619; Johnson v. Railroad, 76 Mo. 553; Hudgens v. Railroad, 79 Mo. 418; Nance v. Railroad, 79 Mo. 196; Manz v. Railroad, 2 West. Rep. 472.

II. There was an entire failure of proof tending to show that the plaintiff's mare entered at a point where the defendant was, by law, required to fence. Bremer v. Railroad, 61 Wis. 114; Railroad v. Suman, 29 Ind. 40; Cecil v. Railroad, 47 Mo. 246; Nance v. Railroad, 79 Mo. 196. Verdicts must be sustained by something more than mere theory and supposition. Fitterling v. Railroad, 79 Mo. 504; Smith v. Railroad, 37 Mo. 287, 295; Callahan v. Warner, 40 Mo. 131, 136-7; Wood v. Railroad, 51 Wis. 201; Railroad v. Henrice, 93 Pa.St. 431; Railroad v. Kirkwood, 45 Mich. 51.

III. The provisions of section 809 (old section 43) do not apply to injuries to stock on station grounds (1) Because such grounds are not required to be fenced. Rev. Stat., 1879, sect. 809; Davis v. Railroad, 26 Iowa 556-7. (2) Suits for injuries to stock at station grounds have uniformly been brought under the fifth section of the damage act. Rev. Stat., 1879, sect. 2124; Weir v. Railroad, 48 Mo. 558; Lloyd v. Railroad, 49 Mo. 199; Swearingen v. Railroad, 64 Mo. 75; Robertson v. Railroad, 64 Mo. 412; Wallace v. Railroad, 74 Mo. 594; Russell v. Railroad, 83 Mo. 507; Clarkson v. Railroad, 84 Mo. 583; Morris v. Railroad, 58 Mo. 78. No case can be found in the books, where an action under the old forty-third section was sustained for injuries happening on station grounds. (3) Because said section does not require, and the law will not permit, the defendant to fence up its stations. Clarkson v. Railroad, 84 Mo. 585; Russell v. Railroad, 83 Mo. 510; Swearingen v. Railroad, 64 Mo. 75; Robertson v. Railroad, 64 Mo. 412; Edwards v. Railroad, 66 Mo. 567; Schooling v. Railroad, 75 Mo. 518; Morris v. Railroad, 79 Mo. 367; Lloyd v. Railroad, 49 Mo. 199; Rhea v. Railroad, 84 Mo. 348; Elliott v. Railroad, 66 Mo. 683; Railroad v. Campbell, 47 Mich. 265; Greely v. Railroad, 33 Minn. 136; Keyser v. Railroad, 56 Iowa 207; Railroad v. Wood, 82 Indiana 593; Railroad v. Willis, 93 Ind. 507; Railroad v. Haus, 111 Ill. 114; Pickett v. Railroad, 33 Kan. 748. For injuries occurring " at places where they are not required to, but may, fence and do not," they are liable under section 2124 (old section 5 of the damage act). Elliott v. Railroad, 66 Mo. 683; Rhea v. Railroad, 84 Mo. 345; Russell v. Railroad, 83 Mo. 510; Clarkson v. Railroad, 74 Mo. 585; Morris v. Railroad, 79 Mo. 370.

IV. ( a ) The provisions of section 809 not being applicable to the case made by the evidence, it was error for the court to give plaintiff's first instruction. Rhea v. Railroad, 84 Mo. 308; Russell case, supra. (b ) Said instruction was too general, vague and indefinite to be a guide to the jury. Its only tendency was to mislead. Young v. Ridenbaugh, 67 Mo. 574; State v. Laurie, 1 Mo.App. 371. (c ) It was incomplete. Clarkson case, supra; Rayson v. Trumbo, 52 Mo. 35. (d ) It left a question of law to the jury for their determination. Railroad v. Whalen, 42 Ill. 396; Davis v. Railroad, 26 Iowa 549; Railroad v. Cory, 39 Ind. 218; Railroad v. Engle, 76 Ill. 318. ( e ) And was an incomplete, defective statement of that question. Railroad v. Wood, 83 Ind. 593.

V. The court erred in refusing to give instructions prayed by the defendant. Morris v. Railroad, 79 Mo. 367; Russell v. Railroad, 83 Mo. 510; Edwards v. Railroad, 66 Mo. 567. See cases cited in support of point III.

VI. The court erred in rendering judgment for double the value of the animal. See cases cited in support of point III.

VII. Plaintiff having...