Morris v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1883
• Citation: 79 Mo. 367
• Parties: MORRIS v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 367

MORRIS

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

AFFIRMED.

Geo. W. Easley for appellant.

Thos. Ryan for respondent.

HOUGH, C. J.

This is a suit under the 43rd section of the Railroad Law, (R. S., § 809,) for damages for stock killed and injured by reason of the failure of defendant to erect and maintain fees as required by law. The petition contains three counts which are substantially the same, except as to dates and the description of the stock killed and injured.

1. RAILROADS: double damages for killing live stock: pleading: jeofails.

The first count is as follows: Plaintiff states that defendant is indebted to him in the sum of $15 for the killing of one hog, the property of plaintiff, by defendant's engines and cars, which were used and operated by the agents and servants of defendant; that plaintiff's said hog was killed as aforesaid on the 1st day of April, 1879, at a point of defendant's railroad track and at a point where the same was not inclosed by lawful fence sufficient to prevent plaintiff's said hog from getting upon defendant's said track, and where said railroad track runs through, along and adjoining the inclosed pasture-field of plaintiff; that the point where said hog got upon defendant's railroad and where said hog was killed is in Washington township, Buchanan county, Missouri; that said hog was not killed at any public or private road crossing on defendant's said railroad track; that plaintiff has been damaged as aforesaid by reason of the failure of defendant to erect and mintain lawful fences sufficient to prevent plaintiff's said hog from straying on defendant's railroad track as aforesaid; and that by virtue of section 43, article 2, chapter 37, Wagner's Statutes of Missouri, and of the amendment thereto, plaintiff is entitled to recover of defendant double the value of said hog; wherefore plaintiff asks judgment for $30 and costs.

The sufficiency of this petition was assailed at the trial and is denied here. Under the decision of this court in Edwards v. Railroad Co., 74 Mo. 117, this petition is good after verdict.

2. _____: ______.

The defendant also contends that the judgment is without evidence, to support it, inasmuch as no testimony was offered from which it could be determined whether the defendant was guilty of negligence in failing to repair its fence, the plaintiff having failed to show how long the fence had been down. In Clardy v. Railroad Co., 73 Mo. 576, this court said that “after fences have once been erected as required by law, the company is only liable for a negligent failure to maintain such fences; and it is, therefore, entitled to a reasonable time in which to make repairs after, having knowledge of a defect therein or after that period has elapsed in which, by the exercise of reasonable diligence, it could have had knowledge of such defect.” The objection to the sufficiency of the evidence cannot be sustained in this case, as it does not appear from the record before us that the defendant ever constructed a lawful fence where the stock injured and killed entered upon its right of way. Indeed it is fairly inferable from the testimony that the defendant did not perform its statutory duty in that regard. Chubbuck v. Railroad Co., 77 Mo. 591.

3. INSTRUCTIONS: harmless error.

It is further contended that the court erred in not confining the jury to a finding of the value of the animals injured and killed. The instruction given by the court directed the jury to assess the damages “at such sum as they might believe from the evidence that plaintiff had suffered by the killing or injuring of his hogs, not to exceed the amount claimed in his petition,” which was double the value of the hogs. There is no conflict in the evidence as to the value of the hogs injured and killed, and the verdict of the jury on...