Montgomery v. Wabash, St. Louis & Pacific Railway Co.
| Decision Date | 20 December 1886 |
| Citation | 2 S.W. 409,90 Mo. 446 |
| Parties | Montgomery v. The Wabash, St. Louis & Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. Benjamin E. Turner, Judge.
Reversed.
Geo. S Grover for appellant.
(1) The jury should have been instructed to find for defendant. To render defendant liable in this action there must have been some causal connection shown between the height of the gate and the injury. If the gate had been four and a half feet high and had been blown open the stock would have been killed just the same. Holman v. Railroad, 62 Mo. 562; Alexander v. Railroad, 76 Mo. 494; Wallace v Railroad, 74 Mo. 594; Braxton v. Railroad, 77 Mo. 455. The injury resulted, not from any failure on the part of defendant to perform a duty imposed on it by law, but because of an unforeseen accident, which the performance of such duty could not have prevented. And where such proof appears, this court has repeatedly held that the demurrer to the evidence should be sustained. Harrington v Railroad, 71 Mo. 384; Fitterling v. Railroad, 79 Mo. 504; Ridenore v. Railroad, 81 Mo. 227. (2) The instructions given by the court of its own motion were erroneous. The first, second, and fourth instructions given by the court, of its own motion, declared that if the gate in question was not four feet and a half high, then the plaintiff was entitled to recover. The cause of the injury, an unforeseen and unavoidable accident, was thus ignored, and in the form in which these declarations of law were given, the jury must necessarily have found for the plaintiff, as there was no other alternative left to their discretion. (3) Defendant's seventh instruction, refused, declared the exact principle laid down by this court in the following cases: Clardy v. Railroad, 73 Mo. 576; Case v. Railroad, 75 Mo. 668; Fitterling v. Railroad, 79 Mo. 504. (4) The challenged jurymen were incompetent. R. S., sec. 2796; Railroad v. Adler, 56 Ill. 344; Davenport Gas Light and Coke Co. v. Davenport, 13 Iowa 229. (5) The court erred in refusing to receive the verdict of the jury and in compelling them to reform it. R. S., sec. 3704; State ex rel. v. Rombauer, 44 Mo. 590; State ex rel. v. Knight, 46 Mo. 83.
Wood & Montgomery for respondent.
(1) The evidence does not disclose how the cattle got upon the defendant's track or right of way, whether through or over the gate, or through or over the fence. The evidence does disclose the fact that defendant's fence was unlawful at the time of the killing, and had been ever since its construction. Not being enclosed by a lawful fence, the law in substance declares the railroad to be dangerous. As defendants run and maintain their railroad in direct violation of a statute passed for the protection of the lives and property of the people, plaintiff will not be required to show negligence. Defendant's acts constitute negligence per se: the law implies it. The instructions of the court were correct and fully declared the law applicable to the case. R. S., 1879, sec. 809; King v. Railroad, 79 Mo. 328. It appearing from the evidence that defendant had reasonable notice of the defects in the fence prior to the killing, or that sufficient time had elapsed since the construction of the fence to impute notice of defects to defendant, the court would not have been authorized, even under appellant's theory of the law governing the case, in giving appellant's refused instructions. Gee v. Railroad, 80 Mo. 283; Clardy v. Railroad, 73 Mo. 576; Moore v. Railroad, 73 Mo. 438; Terry v. Railroad, 77 Mo. 254. The defendant, not having erected such a fence as is required by law, is in no better position than if he had erected no fence at all. King v. Railroad, supra. (2) The two challenged jurymen were competent. Hudson v. Railroad, 53 Mo. 536; Keegan v. Kavanaugh, 62 Mo. 230; State ex rel. Goldsoll v. Bank, 80 Mo. 626.
This is a suit for double damages for two cows, killed by the defendant's cars at a farm crossing, where the road passes through plaintiff's lands. The court overruled the defendant's challenge for cause to two jurors. The challenge to each was for substantially the same reason, and the evidence of one only need be given. He made the following statements in answer to questions asked by the defendant and the court:
Q. "I understand you to say, in answer to question propounded, that if in your judgment the evidence in this case, of Montgomery v. The Wabash, St. Louis & Pacific Railway Company, was equally balanced, you would be inclined to find against the railroad?"
A. "Yes, sir."
Q. "And that you say your answer is common to all railroads; you would be just as willing to find against the Wabash as against any other road, and if, in your opinion, when you had heard the evidence in this case, it was equally balanced, you would find against the defendant?"
A. "Yes, sir."
Q. (By the court.)
A.
Further answering questions asked by the court, this juryman said:
In Hudson v. Railroad, 53 Mo. 525, the jurors were asked, if the evidence in the case should be evenly balanced between the plaintiff, an individual, and defendant, a corporation, which way they would incline to find. They answered they would incline to find for plaintiff. They then in answer to the court, stated that they thought they could try the case fairly and without prejudice or bias. This court then held there was no error in accepting the jurors, and in so doing remarked: "In this case the jurors answered the judge, that they could decide the case without partiality or bias, and to take their answers all together it is only shown that they were not lawyers; in fact it is generally understood, that jurors are not informed in reference to where the preponderance of evidence is required, and, therefore, it is usual for attorneys in a cause to ask the court to inform the jury by an instruction upon whom the burden rests to prove the different...
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