Meyers v. Union Trust Co.

• Citation: 82 Mo. 237
• Parties: MEYERS v. THE UNION TRUST COMPANY et al., Appellants.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

82 Mo. 237

MEYERS

v.THE UNION TRUST COMPANY et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

Thomas J. Portis for appellants.

To entitle plaintiff to a judgment for double damages under section 809, he must both allege in his petition and prove that the point at which his animal came on to the railroad or right of way, was not within the corporate limits of any town or city. In this case there being no such allegation in the petition, and no proof of this fact, plaintiff was not entitled to recover. Rowland v. Railway Co., 73 Mo. 619; Schulte v. Railway Co., 76 Mo. 328. Also that the injuries were the result of a direct and actual collision of the engine or cars, with the animal injured. Lafferty v. Railroad Co., 44 Mo. 291; Hughes v. Railroad Co., 66 Mo. 325. Seibert v. Railway Co., 72 Mo. 565. For these reasons the declaration of law asked by defendants should have been given, and the motion for a new trial should have been sustained. The statute under which this action was brought and prosecuted is in conflict with the provisions of the State and Federal constitutions.

Hollis & Wiley for respondent.

PHILIPS, C.

This is an action instituted in the common pleas court of Moberly, Randolph county, to recover damages for the killing by defendant, a railroad corporation, of plaintiff's colt. The action is based on section 809 Revised Statutes. The petition is in proper form and alleges the killing to have occurred on the 29th day of May, 1880. The answer tendered the general issue.

The plaintiff, to sustain the issues on his part, testified “that he was the owner of the animal sued for in the petition, and that at the time of the killing she was of the value of $60, and that the said animal got upon the track of defendant at a point where the same was not fenced and not at a public road crossing. Found the mare or colt lying at one end of a trestle work on defendants' road, down in a branch. Don't know how she got there or how she was hurt.”

W. J. Shause, witness for plaintiff, testified: “That he saw the animal lying over in the branch at one end of the trestle work the morning after she was thrown there (or) had fallen there. Could see her tracks on defendants' road going in the direction of the trestle. She seemed to check up just as she reached the trestle work, and her hind feet seemed to have gone between the ties just at the end of the trestle work on the opposite end from where she was lying when I found her. The trestle was about twenty-six or twenty-seven feet long. I saw hair on the ends of the screws joining the rails together on the end of the trestle work to which she must have first come, but no other marks on the trestle until on the opposite end of the trestle, where she seemed to jump off or was thrown off against some willow stubs, on which there was hair. There were no tracks of the animal on the side of the trestle where we found the animal. The first and only evidence of her striking was on the stubs where she seemed to have lighted on her side, on the south side of the railroad track outside. The animal was not dead when I first saw her. She had no bones broken. On the inside of her hind leg, above the second joint, or hock, the hair was scraped off about eight inches, as though something had struck her between the hind legs--a cow catcher or something of that sort. Appraised the animal at $60.””””

Wm. Guin, another witness for plaintiff, testified to substantially the same as the previous witness. The plaintiff here rested his case.

The defendants, to sustain the issues on their part, offered James Russell, who testified: “That he saw the animal sued for by plaintiff at the time she was hurt. He was an engineer on defendants' road running an engine. The animal, when he first saw her, was running in front of an engine that was in his charge at the time, and when she came to the trestle referred to, ran on to it, and jumped or ran across it diagonally and jumped off down into the branch. The engine was at no time nearer than fifty feet to the animal, and she was not struck or touched by the engine or cars.”

The defendant at...