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

• Decision Date: 28 February 1875
• Parties: GEORGE G. NALL, Respondent, v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., Appellant.
• Court: Missouri Supreme Court

59 Mo. 112

GEORGE G. NALL, Respondent,

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., Appellant.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Clay Circuit Court.

D. C. Allen, for Appellant.

I. It must appear affirmatively from the testimony upon the trial de novo in the Circuit Court on appeal from a justice, that the animals were killed or injured in the township wherein the justice resided before whom the suit was brought. Unless this be the case, the Circuit Court has no jurisdiction. (Wagn. Stat., ed. 1872, 1, 9, p. 810, § 3, clause 5.)

II. Wagn. Stat., 520, 521, § 5, relieves a party who sues a railroad company for stock killed or injured on a portion of its railroad not enclosed by a lawful fence, or not in the crossing of any public highway, from proof of negligence, unskillfulness and misconduct, only when such party sues for simply the value of the stock, and the value in such case is all that the party can recover. Under § 43, (Wagn. Stat., 310-11) which entitles plaintiff to double damages, he must prove negligence. And he cannot sue under § 5 and § 43 in the same action. He must elect.

Dunlap & Austin, for Respondent.

I. The statement filed with the justice shows that the injuries complained of were done in Gallatin township, Clay county. The transcript of the justice shows that suit was instituted in said township, and before a justice of said township. The return of the officer shows that the writ was served in said township. Thus there can be no question as to the jurisdiction of the justice. (Hansberger vs. Pac. R. R. Co., 43 Mo., 196; Iba vs. The Han. & St. Jo. R. R. Co., 45 Mo., 470; Hudson vs. St. L., K. C. & N. R. R. Co., 53 Mo., 525.)

II. The statement need not allege that defendant failed to exercise due care or diligence. The question of negligence of defendant “cannot arise.” (Gorman vs. Pac. R. R., 26 Mo., 452; Clark's Adm'x vs. Han. & St. Jo. R. R. Co., 36 Mo., 220; Tarwater vs. Han. & St. Jo. R. R. Co., 42 Mo. 193.WAGNER, Judge, delivered the opinion of the court

This was an action commenced before a justice of the peace under the 43d section of the railroad law, for the killing and injury of certain cattle belonging to the plaintiff, by the cars run and operated by the defendant.

The statement filed with the justice alleged that the killing took place in Gallatin township, Clay county, at a place where there was no public road crossing, and where the road ran through inclosed and cultivated fields, and where the same was not fenced, and upon the evidence adduced the justice rendered a judgment for the plaintiff. Defendant then appealed to the Circuit Court, and upon a trial anew the same result followed.

At the trial, the killing and injury to the stock was clearly proved, and also the place where it occurred, and that it was done where the road passed through inclosed and cultivated fields, and no fences were erected. Plaintiff asked for no instructions, but the defendant asked for four, which were all refused, and this refusal constitutes the principal error complained of.

By the first instruction it was declared, that it devolved upon the plaintiff to prove that the damages alleged were inflicted by the trains of the defendant, and if it did not fairly and with certainty appear from the testimony that such was the fact, the finding should be for the defendant. The second instruction was, that it must affirmatively appear from the testimony that the damages alleged were inflicted in Gallatin township, in Clay County,...