Oyler v. Quincy, O. & K. C. R. Co.

• Decision Date: 22 May 1905
• Citation: 113 Mo. App. 375,88 S.W. 162
• Court: Missouri Court of Appeals
• Parties: OYLER v. QUINCY, O. & K. C. R. CO.<SMALL><SUP>*</SUP></SMALL>

88 S.W. 162

113 Mo. App. 375.

OYLER v. QUINCY, O. & K. C. R. CO.^*

Kansas City Court of Appeals. Missouri.

May 22, 1905.

1. RAILROADS — INJURY TO LIVE STOCK — OWNERSHIP OF ROAD — SUFFICIENCY OF EVIDENCE.

In an action against a railroad for injury to live stock alleged to have been struck by a train on defendant's road, where plaintiff, after introducing some evidence of the ownership of the road, was permitted thereafter throughout the trial to assume as proved in the examination of witnesses the fact of defendant's ownership of the road without objection, and the defendant offered no evidence and gave no intimation of purpose to resist the action on the ground that it did not own the road, no further proof of defendant's ownership of the road was necessary.

2. SAME — KILLING BY TRAIN.

Where recovery is sought under Rev. St. 1899, § 1105, authorizing the recovery of double damages for stock killed by trains, the fact that the stock was killed by a train is not required to be proved by direct evidence.

3. SAME — FAILURE TO FENCE — CONSTRUCTION OF STATUTE.

Under Rev. St. 1899, § 1105, authorizing the recovery of double damages for injury to live stock caused by railroad trains and the failure of railroad to maintain lawful fences, where the lands adjoining a railroad's right of way are not inclosed by a lawful fence, and the stock of a stranger reaches the railroad over them, the railroad is liable for injuries inflicted by its trains if its right of way is not inclosed by a lawful fence and the stock enters on that account.

4. SAME.

Rev. St. 1899, § 1106, authorizing the recovery of damages against railroads for injury to live stock caused by their failure to maintain lawful fences along their right of way, where the injuries are inflicted by the animals being

frightened and running against a fence or into a culvert, bridge, slough or mire, or other object along the line of road, is not an exclusive remedy, and, if a railroad fails to erect and maintain a lawful fence, and stock, through such breach of duty, strays on the right of way and is injured by running along over the ties and other hard substances and material of the track, the owner may recover.

5. SAME.

Where the stock in question did not reach the defendant's right of way from the lands of an adjoining owner, but directly from the highway, a contention that recovery could be had under neither section 1105 nor section 1106, Rev. St. 1899, because they are intended for the benefit of the proprietors of adjoining lands, and not for the benefit of owners of trespassing animals, was untenable.

Appeal from Circuit Court, Grundy County; Paris C. Stepp, Judge.

Action by F. S. Oyler against the Quincy, Omaha & Kansas City Railroad Company. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

Hall & Hall and J. G. Trimble, for appellant. Harber & Knight, for respondent.

JOHNSON, J.

This suit originated before a justice of the peace in Taylor township, Grundy county. The complaint is in three counts. In the first, double damages are sought under section 1105, Rev. St. 1899, for the loss of a mule killed by one of defendant's trains. In the second, single damages are asked for injuries sustained by another mule in its efforts to escape the same train. The third count is founded upon a cause of action assigned by Dr. H. W. Oyler to plaintiff, based upon a claim for double damages for the killing of a horse by another of defendant's trains. It is alleged the two mules entered upon defendant's right of way on the night of December 1, 1903, by jumping over an insufficient cattle guard maintained in Taylor township half a mile east of the town of Brimson at a point where the defendant's railroad is crossed by a public road. The horse is stated to have entered the right of way during the night of ________, 1902, by jumping over a cattle guard maintained at another public road crossing in the same township, and also charged to have been insufficient to turn stock. At the trial in the circuit court, upon appeal, plaintiff recovered a verdict upon each count. Judgment was entered upon the first and third counts for double damages, and upon the second for the amount of the verdict. Defendant appealed.

It is claimed plaintiff failed to offer any evidence tending to show that defendant owned the railroad mentioned. The proof of this fact, the burden of which was upon plaintiff, though meager, was sufficient. After it was introduced, plaintiff's counsel throughout the trial was permitted to assume as proven, in the examination of witnesses, the fact of defendant's ownership of the road, without objection. Defendant offered no evidence, and gave no intimation of purpose to resist the action on this ground. Under such circumstances, full proof should not be exacted. Geiser v. Ry. Co., 61 Mo. App. 462; Keltenbaugh v. Railroad, 34 Mo. App. 148; Lindsay v. Railroad, 36 Mo. App. 51.

It is contended that the peremptory instruction...