Morris v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1874
• Citation: 58 Mo. 78
• Court: Missouri Supreme Court
• Parties: P. S. MORRIS, Defendant in Error, v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., Plaintiff in Error.

58 Mo. 78

P. S. MORRIS, Defendant in Error,

v.ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Audrain Circuit Court.

Woodson, Blodgett & McFarlane, for Plaintiff in Error.

VORIES, Judge, delivered the opinion of the court.

This action was commenced before a justice of the peace in Audrain county. The action was brought under the fifth section of the act concerning “Damages and contributions in actions of tort,” (Wagn. Stat., 519) to recover damages for the killing and crippling by the locomotive of defendant of two mules and one horse colt, alleged to be the property of the plaintiff.

A judgment was rendered by the justice in favor of the plaintiff for the value of the animals killed and injured. From this judgment an appeal was taken to the Audrain Circuit Court, where the plaintiff again recovered judgment.

In due time the defendant filed motions for a new trial and in arrest of the judgment, which were severally overruled by the court, and the case has been brought to this court by writ of error.

The evidence introduced in the trial of the case in the Circuit Court, tended to prove that the mules and colts sued for were killed and injured at a cattle guard situate about one fourth of a mile west of Thompson's Station, in Audrain county; that said station is situate in an open prairie country, has a passenger depot and stock pens situate thereat, and a switch to the road has been constructed at the station, which extends west from the station to within about forty yards of the cattle guard where the injury to the stock took place; that from this cattle guard west the defendant's railroad is fenced, but that the space of about one-fourth mile between where the mules and colt were injured and the depot is open, unfenced prairie land; that the switch to the road extends west to within forty yards of where the fence inclosing the railroad commences; that the mules had entered upon the road at or near the station, and had run down the track to where they were injured; that the train of cars by which the injury was inflicted, was going west, and made no stop at the station; that the mules had escaped from plaintiff's pasture the night before the injury, and had gone on the track. One mule and the horse colt were killed, and the other mule crippled. The mule killed was proved to be worth $225; the other mule was injured to the amount of $25, and the horse colt was shown to be worth $75. The colt belonged to a minor son of the plaintiff. The injury was shown to have been by a train conducted by the servants of defendants. At the close of the evidence, the court, at the instance of the plaintiff, instructed the jury as follows:

1. “If the jury believe from the evidence in the case, that the plaintiff's mules and colt were killed and injured by the cars, locomotive or other conveyance used on defendant's road, and that the accident did not occur at the crossing of a highway, nor on a portion of defendant's road inclosed by a fence, nor where the said road crossed the plat of any town or city, then the defendant will be liable irrespective of the question of negligence, and the jury should find for the plaintiff.”

2. “If the jury believe from the evidence in the case, that defendant's road was not fenced at the place where the damage was done, and where said road does not cross any street or highway, and where the said road does not cross the plat of any town or city, it matters not that the highest degree of care was exercised by the defendant's agents and servants, the defendant is liable notwithstanding, and the jury should find for the plaintiff.”

These instructions were objected to by the defendant, and exceptions taken. The defendant then asked the court to instruct the jury, among other instructions, as follows:

1. “The court instructs the jury that the plaintiff is not entitled to recover in this action under the statement and evidence.” 2. “If the jury believe from the evidence, that plaintiff...