Redmond v. Missouri, Kansas & Texas Railway Co.

• Decision Date: 23 November 1903
• Parties: J. T. B. REDMOND, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

77 S.W. 768

104 Mo.App. 651

J. T. B. REDMOND, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

November 23, 1903

November 23, 1903;

Rehearing Denied 104 Mo.App. 651 at 656.

Appeal from Howard Circuit Court.--Hon. John A. Hockaday, Judge.

AFFIRMED.

Cause affirmed.

Webster Gordon for appellant.

(1) The trial court's second conclusion of law, it being the third paragraph of its special finding of law and fact, is illegal and erroneous. The court finds as a matter of law that it was the duty of the engineer operating the train that killed the mules, to have used all effort and skill to have stopped the train and avoid striking and killing the mules after he saw them ahead of him on the track. Spencer v Railway, 90 Mo.App. 91; Hill v. Railway, 49 Mo.App. 534; Hill v. Railway, 121 Mo. 477; Buckman v. Railway, 83 Mo.App. 129; Livingston v. Railway, 170 Mo. 473. (2) The trial court at the request of the defendant, gave instruction numbered one which is a demurrer to all the evidence bearing on the third count of the petition. It is still reversible error to do so, and the verdict and judgment of the trial court can not stand. Lincoln v. Railway, 75 Mo. 27; Straub v. Eddy, 47 Mo.App. 189; Bricker v. Railway, 83 Mo. 394. (3) Instruction numbered two given by the court at request of the defendant is erroneous as to the first count of plaintiff's petition. Meadows v. Railway, 82 Mo.App. 83; Radcliff v. Railway, 90 Mo. 127; Clarkson v. Railway, 84 Mo. 593; Evans v. Railway, 67 Mo.App. 255; Vail v. Railway, 28 Mo.App. 372. (4) The instruction last considered is also erroneous as to the second count of the petition which is based upon our double damage statute which requires all railroads to fence all places along its line. (5) The court's finding of law and fact is erroneous and insufficient. Hamill v. Talbott, 72 Mo.App. 33; Nichols v. Carter, 49 Mo.App. 401; Vette v. La Barge, 64 Mo.App. 179, 185; Freeman v. Hemenway, 75 Mo.App. 617, 621; Downey v. Railway, 94 Mo.App. 137; Kirkland v. Railway, 82 Mo. 466; Morris v. Railway, 58 Mo. 78; Railway v. Clark, 121 Mo. 183; Prather v. Railway, 84 Mo.App. 86; Schafer v. Railway, 76 Mo.App. 131.

George P. B. Jackson for respondent.

(1) There is nothing in the point made by the appellant that the court's second finding of law concerning the duty of the enginemen if they might have discovered the mules, because it is admitted all around in the case that the mules were actually discovered. The cases cited by appellant only apply where it is claimed an animal was not discovered--but it might have been. (2) The first instruction or declaration of law is to be construed in connection with the special findings to ascertain the theory of the court in disposing of the case. The judge was in this case the trier of the fact. (3) The appellant has misconceived the case and the statute when he says a railroad will be held guilty of negligence for not fencing at a station, although to do so would interfere with the public and endanger employees. The cases he cited do not so hold--while it has been repeatedly held to the contrary. Pearson v. Railroad, 33 Mo.App. 543; Jennings v. Railroad, 37 Mo.App. 652; Crenshaw v. Railroad, 54 Mo.App. 233; Grant v. Railroad, 56 Mo.App. 65; Webster v. Railroad, 57 Mo.App. 451; Hurd v. Chappell et al., 91 Mo.App. 317. The cases cited under the previous point condemn the contention in point IV of appellant's brief. The "switch limits" include a reasonable length of track outside of the switch or head block. (5) The findings fully covered all the counts of the petition and every question of law and fact involved in the case.

OPINION

BROADDUS, J.

The plaintiff sues for damages for the killing of two of his mules by defendant, the petition being in three counts. The first alleges that the animals came upon defendant's track and were killed at a point where defendant's railroad was not fenced, as required by law. Plaintiff prays for single damages and for a reasonable attorney's fee as provided by sections 1106-07, Revised Statutes, 1899. The second count is for double damages under section 1105, Revised Statutes 1899. And under the third count, plaintiff seeks to recover damages for the negligent killing of said animals by defendant. A jury was waived and the cause tried by the court. The finding and judgment was for defendant and plaintiff appealed.

At the request of the defendant the court gave the following instructions:

"1. The court instructs you that upon all the evidence bearing upon the third count of the petition the plaintiff is not entitled to recover and your verdict must be for the defendant on that count.

"2. The court instructs you in reference to the first and second counts of the petition that if you believe from the evidence that the plaintiff's mules were struck at a point on defendant's railroad within the switch limits of the station of Huntsdale and that the length of the track set apart and used by the defendant as its switch at said station was unnecessary (necessary) for the transaction of the defendant's business at said station or for the convenience of the public in transacting business thereat or for the safety of the men engaged in operating trains then the defendant was not required to fence its tracks at said place and the plaintiff can not recover on said counts."

By request of plaintiff the court made a finding of facts as follows:

"First. As matters of law the court finds that the defendant was not required to fence its tracks at the station at Huntsdale, if such fencing would interfere with the transaction of the business of said company with the public or endanger the lives and safety of its employees and officers in operating its cars.

"Second. As a matter of fact the court finds that the fencing of said road at the Huntsdale station would have interfered with the business of said road with the public and endangered the lives and safety of its employees and officers in operating the same.

"Third. As a matter of law the court finds that it was the duty of the engineer operating the train which killed the mules in question to have used all reasonable effort and skill to have stopped the train and avoided striking and killing said mules after he saw them ahead of him on the track.

"Fourth. As a matter of fact the court finds that said engineer operating said train did use reasonable care and skill to prevent the train from striking the mules after he first saw them on the track."

The evidence discloses that the animals came upon the track within the switch limits of the station and were killed after they had passed such limits at a bridge where the track crosses a stream. As to whether the...