Murphy v. St. Louis and Southwestern Railroad Company
| Decision Date | 07 July 1910 |
| Parties | W. T. MURPHY, Respondent, v. ST. LOUIS AND SOUTHWESTERN RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed and cause remanded.
S. H West, Ralph Wammack and A. T. Welborn for appellant.
(1) The petition would have had to allege, either that the gate was opened by defendant, its servants, agents or employees, that defendant knew it was open or that it had been open so long that defendant should have known it was open and should have had it closed. Litton v. Railroad, 111 Mo.App. 140; Railroad v. Kavanaugh, 163 Mo. 54. (2) The court should have given defendant's instruction in the nature of a demurrer to the evidence. Goodrich v. Railroad, 152 Mo. 222. (3) All the cases hold that the railroad is held to only reasonable diligence in keeping the gates in its right of way closed. Walthers v. Railroad, 78 Mo 622; Binicker v. Railroad, 83 Mo. 660. (4) Where a single instruction is given, which authorizes a verdict predicated on the facts therein stated to be found, it should embrace all the facts necessary to be found to support a verdict. Russell v. Railroad, 26 Mo.App. 368; Fink v. Phelps, 30 Mo.App. 431; Bank v. Metcalf, 29 Mo.App. 384.
J. V Cowan for respondent.
--This is an action for double damages on account of the alleged killing of a steer belonging to plaintiff by defendant near Parma, New Madrid County.
The petition alleges that the steer strayed and went in and upon the railroad track and grounds of defendant by reason of the failure and neglect of defendant to erect and maintain good and lawful fences along the sides of its said road with gates securely hung with hooks and latches and kept shut at all necessary farm crossings and to construct sufficient cattle-guards at the point where the said steer entered upon defendant's said road.
That the defendant, by its engines and car ran upon and against said steer at said point in New Madrid county and killed said steer to plaintiff's damage in the sum of fifty dollars.
Answer was a general denial. At the close of all the evidence defendant offered a demurrer to the testimony which was overruled. Verdict for plaintiff in the sum of fifty dollars which, on motion of plaintiff, was by the court doubled and judgment entered accordingly. Defendant filed a motion for new trial which was overruled by the court and defendant has appealed.
The errors assigned are as follows:
1. The court erred in admitting illegal, incompetent and irrelevant testimony on the part of plaintiff over the exception and objection of defendant.
2. The court erred in overruling defendant's instruction in the nature of a demurrer to the testimony.
3. The court erred in giving instruction number one on the part of plaintiff.
The appellant contends that the petition in this case is not sufficient to admit the testimony of the gate being left open and the steer getting upon the right of way of defendant through the open gate. In this contention we think the defendant is right. The statute makes it the duty of the railroad company to fence its right of way and to maintain the fences in good condition, and also to construct gates at proper places and maintain them in good condition, and if the company fails to do this they are made liable for double the value of any stock that may be killed by reason of this neglect, but when they have constructed such fences and gates as the law requires they shall, then the basis of any subsequent liability is that of their negligence in keeping them in proper repair, or in keeping the gates closed. [Walther v. Missouri Pacific Railway Company, 78 Mo. 617; Goodrich v. Railroad, 152 Mo. 222, 53 S.W. 917; A., T. & S. F. Ry. Co. v. Kavanaugh, 163 Mo. 54, 63 S.W. 374; Litton v. Railroad, 111 Mo.App. 140, 85 S.W. 978; Peery v. Railroad, 122 Mo.App. 177, 99 S.W. 14.]
In this case the evidence shows the steer to have gone upon the track of defendant through a gate that had been left open so that it is clear upon the facts developed in the...
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