Raindge v. Wabash Ry. Co.

• Citation: 206 S.W. 395
• Decision Date: 11 November 1918
• Docket Number: No. 12973.,12973.
• Parties: RAINDGE v. WABASH RY. CO.
• Court: Missouri Court of Appeals

206 S.W. 395

RAINDGE v. WABASH RY. CO.

No. 12973.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Adair County; J. A. Cooley, Judge.

"Not to be officially published."

Action by George Raindge against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Higbee & Mills, of Kirksville, and J. L. Minnis, N. S. Brown, and L. H. Strasser, all of St. Louis, for appellant.

S. W. Mills and John C. Mills, Jr., both of Kirksville, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment for injury to two cows alleged to have escaped upon defendant's right of way by reason of a defective cattle guard. Defendant maintains, in Adair county, Mo., a railroad, running in a northerly and southerly direction, which crosses a public wagon road running east and west in said county. Plaintiff's two cows, which were injured and for which injury he asked judgment, with some other cows strayed along on the south side of the public road towards the west to the railroad crossing, and, according to" plaintiff's evidence, went over the defective cattle guard to a point 40 to 50 feet south of the crossing where a south-bound train struck them, injuring them so that one of them had to be killed.

Defendant put upon the stand a number of witnesses who testified that the cattle were struck upon the public crossing and were carried over or knocked across the cattle guard on defendant's right of way to a point south of the cattle guard. There were no eyewitnesses produced by plaintiff to the occurrence, but plaintiff put on several witnesses to show that there were fresh cattle tracks across the defective cattle guard. This guard was so defective that there was a path through the same, 14 inches wide, where there was nothing to prevent cattle from crossing from the public road to defendant's private right of wry. Plaintiff further shows that there was blood and hair, corresponding to the hair upon plaintiff's injured cows, upon the ties and rails 40 to 50 feet south of the crossing.

Defendant contends that the court erred in overruling its demurrer to the evidence, and in support of this contention it points out the fact that it was an everyday occurrence for cattle to pass in and out over the cattle guard in question; that there were other cows inside of the private right of way that might have made the tracks across the cattle guard; that there was one other cow struck upon the track in the public road. Plaintiff did not rely upon the fact alone that there were fresh tracks across the cattle guard to show that his cattle strayed across the same before being struck. As before stated, he showed that there was blood and hair on the ties and rails 40 to 50 feet south of the crossing, indicating that his cattle were struck at that point....