Montgomery v. Deering Southwestern Ry. Co.
| Decision Date | 24 April 1917 |
| Citation | 194 S.W. 894,198 Mo.App. 12 |
| Parties | JOHN MONTGOMERY, Respondent v. DEERING SOUTHWESTERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.
Judgment affirmed.
R. L Ward for appellant.
And such testimony as that above set out is merely opinions and conclusions and inadmissible. Esebank v. Cy., 88 Mo 650; Southern Iron Co. v. Smith, 257 Mo.App. 226; Dammann v. Cy., 152 Mo. 186; Fair Grieve v. Cy., 29 Mo. App 141; Walton v. Railroad, 40 Mo.App. 544. The case was tried on opinions and conclusions of plaintiff and his witnesses over our objections and exceptions--all of which the court promptly overruled. "An opinion by a witness with regard to matters that the jury are as competent to judge as the witness is incompetent and inadmissible." St. Louis v. Stock Co., 120 Mo. 541; Koening v. Railroad, 173 Mo. 698; Hurt v. Railroad, 94 Mo. 255; Schrodt v. Cy., 109 Mo.App. 627. "Witnesses must state facts and not opinions and conclusions." Sparr v. Willman, 11 Mo. 230; Wethnell v. Patterson, 31 Mo. 458.
Sam J. Corbett and Roy G. Garrison for respondent.
Till v. Railroad Co., 124 Mo.App. 283; Clem v. Railroad Co., 119 Mo. App., 245, 248.
This is a suit brought by respondent seeking recovery of double damages under section 3145, Revised Statutes 1909, for injury to a cow owned by him alleged to have been struck by one of defendant's trains at a place in Dunklin county where defendant was required to maintain a lawful fence and cattle-guard sufficient to prevent cattle and other animals getting on the railroad. He was given a verdict for $ 35 which was doubled in the judgment, and from the judgment for $ 70 this appeal is taken.
Plaintiff owned a jersey cow, referred to in the record as "a breechy old gal." A field of his farm was bordered by the defendant's railway for something like a half a mile. The evidence is convincing that a fence which was maintained by the railroad company separating its right of way from plaintiff's field was not a lawful fence but on the other hand was in a bad state of repair--torn down in several places, at places trees had fallen across the wires, posts had fallen down, at places the wires were loose from the posts, and the fence was in such condition at many places along plaintiff's field as to permit animals to cross from the field onto the right of way and track. It is unnecessary to go into the details of the evidence as to all this as the bad condition of the fence is proven beyond controversy, and this condition prevailed at the time plaintiff's cow was hurt and had prevailed for a number of years prior thereto. A cattleguard is maintained near one end of this field and several witnesses say that plaintiff's cow had been seen to cross over this cattle-guard "whenever she wanted to." On one afternoon in January the plaintiff's cow was seen in his field or pasture and later in the day was seen on the railroad right of way opposite this field. Nothing more appears concerning the cow's whereabouts until the next morning when she was found to be out of the field and in a public road in the direction of and near to another line of railway known as the Frisco. She bore evidence of having been in a catastrophe of some kind as she was scratched and bruised and at several places on her body the hair and hide had been skinned off, one of these places testified to by the witnesses as being as big as a hand and one witness says as big as two hands. She was crippled and walked with a limp and could hardly get up or down. She appeared in this condition early the next morning after she was seen the afternoon before on defendant's right of way opposite plaintiff's field. On examination made by several witnesses there was found a place on defendant's right of way and track opposite plaintiff's field where an animal of some kind had been struck, knocked down and dragged along the ties and track, and there was also found hair and hide at this place, the hair corresponding in color with that of plaintiff's cow. The evidence discloses that prior to the time she was injured she was reasonably worth $ 65 and that after her injury the cow was worth from $ 10 to $ 15. It is shown that she recovered from the injury except that she remained cripple and that one of the places where the hide had been knocked off had not entirely healed and haired over. The plaintiff kept her for some time, she in the meantime giving birth to a calf (be it said to plaintiff's credit that he did not claim there was a miscarriage!), and then plaintiff sold her for $ 30.
With the evidence in this condition, appellant complains that its instruction directing a verdict for it should have been given.
Our attention is called to the fact that this is a penal statute and must be strictly construed and that to recover under the statute the evidence must show an actual striking of the animal by defendant's engine and cars (Hires v. Railroad, 157 Mo.App. 46, 137 S.W. 60; Colbert v. Railway Co., 78 Mo.App. 176), and that there being no witness who actually saw how she got on the right of way the verdict of the jury was based upon conjecture rather than evidence. An additional fact should be stated and that is that it was shown that after the cow was seen on the right of way on the afternoon before the morning when she came up crippled one of defendant's trains had passed along the railroad.
The law does not require direct evidence of one who saw the collision, nor direct evidence as to how the animal came to be on the right of way and track. Such facts may be found from circumstances which strongly point to a collision between the animal and defendan...
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