Quinn v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 02 April 1917
• Docket Number: No. 12367.,12367.
• Citation: 193 S.W. 933
• Court: Missouri Court of Appeals
• Parties: QUINN v. ATCHISON, T. & S. F. RY. CO.

193 S.W. 933

QUINN v. ATCHISON, T. & S. F. RY. CO.

No. 12367.

Kansas City Court of Appeals. Missouri.

April 2, 1917.

Appeal from Circuit Court, Clinton County; A. D. Burns, Judge.

"Not to be officially published."

Action by Robert E. Quinn against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thomas R. Morrow, Geo. J. Mersereau, and John H. Lathrop, all of Kansas City, and F. B. Ellis and Sloane Turgeon, both of Plattsburg, for appellant. R. H. Musser, of Plattsburg, for respondent.

BLAND, J.

Plaintiff under the provisions of section 3145, R. S. 1909, recovered in the court below the value of a mule owned by him, and the defendant, after taking the proper steps, appealed.

On a demurrer to the evidence we take the testimony of plaintiff's witnesses. The facts as detailed by them are as follows: That plaintiff was pasturing three mules in a field between which and defendant's railroad tracks the company had constructed a fence. While there is no direct evidence as to what place in the fence plaintiff's mules got through, the evidence shows that fresh mule tracks and hair were found at a point in the fence 40 or more yards south of the culvert and upwards of 50 yards south of where the mule was run over by one of defendant's north bound trains; that at this point the fence was in bad condition, the mules having stepped over loose wires, a witnesses stating that for two or three years the defendant had only maintained "a piece of a fence" at this point. The fact that the fence was in bad condition for two or three years was sufficient to take the case to the jury on the question of constructive notice to defendant of the defective fence, and this in the face of a presumption that must be indulged in in favor of the defendant that the fence when originally constructed was a lawful one.

Defendant attacks instruction No. 1 given for plaintiff, for that it permits plaintiff to recover if his mule got through the fence "at a point where defendant was required by law to erect and maintain good and lawful fences, and that said fence was in bad state of repair." The instruction is attacked for the reason that it fails to properly define what is a lawful fence under the laws of Missouri (section 6455, R. S. 1909). In support thereof defendant cites Dietrich v. Railroad, 89 Mo. App. 36, and Miller v. Railway Co., 180 Mo. App. 209, 167 S. W. 1160, which do not seem to harmonize with Hax v. Railway Co., 123 Mo. App. loc. cit. 177, 100 S. W. 693. But whether the instruction is subject to this attack defendant is not in a position to say, for in its instruction No. 1 defendant tells the jury:

"That the plaintiff cannot recover in this case, unless he proves * * * that the mule in question entered on the track through a defective and unlawful fence, as defined by other instructions."

And in its instruction No. 2 it tells the jury:

"In order for plaintiff to recover, he must prove to the satisfaction of the jury that the mule...