Ridenore v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1883
• Citation: 81 Mo. 227
• Parties: RIDENORE v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

81 Mo. 227

RIDENORE

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Daviess Circuit Court.--HON. JNO. C. HOWELL, Judge.

REVERSED.

Wells H. Blodgett and Geo. S. Grover for appellant.

There was a clear failure of proof in this action. The evidence showed that fences and gates had been erected, and that the gate through which the animals got upon defendant's track was closed and securely fastened by plaintiff himself, between sundown and dark on the evening preceding the night of the accident. Harrington v. Railroad Co., 71 Mo. 386; Fitterling v. Railroad Co., 79 Mo. 504. Even if the gate in question had been left open, there is no proof that defendant knew it, or that by the exercise of reasonable diligence could have known of it, or that a reasonable time had elapsed after the acquisition of such knowledge, or after the time at which such knowledge should have been acquired, in which defendant could have closed it. The record is barren of such evidence, and without it plaintiff was not entitled to recover. Clardy v. Railway Co., 73 Mo. 578; Case v. Railroad Co., 75 Mo. 670.

Rush for respondent.

EWING C.

This was a suit before a justice of the peace upon the following statement: Before Frank Ewing, justice of the peace, Union township, Daviess county, Missouri. Riley Ridenore, plaintiff, against Wabash, St. Louis and Pacific Railway Co., defendant.

Plaintiff states that defendant is and was, on and prior to the 4th day of September, A. D., 1880, a corporation duly organized and existing under the laws of the State of Missouri, and on said day was engaged in operating and running a certain railroad along and adjoining certain unenclosed lands in Union township, Daviess county, Missouri, that defendant had failed, and still on and after the date aforesaid, failed to erect or maintain lawful fences on the sides of its said road, where the same passes along and adjoining said unenclosed lands, with openings and gates therein hung, having latches or hooks at the necessary farm crossing aforesaid.

That on said day two certain mules belonged to plaintiff, by reason of such failure to erect and maintain such fences, strayed from said unenclosed lands and got upon the track of said railroad, and whilst so upon said track, said mules were struck and injured by the engine and cars, then and there being run over upon and along said railroad by the defendant, whereby said mules were bruised, cut and injured, to the damage of plaintiff, in the sum of $150, wherefore he prays judgment for $300, being double the amount of his said damages and for costs.”

Verdict and judgment for plaintiff, and appeal to the circuit court.

On the trial in the circuit court the plaintiff offered evidence tending to prove, that he was working his mules on the day the accident happened, on the north side of defendant's railroad; that at the close of the day's work he took his mules from the unenclosed lands on the north side of the railroad, through the gates in the fences, of defendant to the south side of defendant's railroad, and then turned said mules loose to graze on the unenclosed lands on the said south side, a little before sundown; that said gates were shut when he came to them; that after turning the mules loose, plaintiff went back through the gates in said railroad fence between sundown and dark, and that after passing through the gates, the plaintiff securely fastened the same; that at about ten o'clock that night, said mules were struck and injured, as stated in the complaint; that plaintiff at once went to the south gate and found the same sufficiently open to permit his mules...