Robertson v. Atlantic & Pacific R.R. Co.

• Decision Date: 30 April 1877
• Citation: 64 Mo. 412
• Parties: PATRICK H. ROBERTSON, Respondent, v. THE ATLANTIC & PACIFIC R. R. Co., Appellant.
• Court: Missouri Supreme Court

64 Mo. 412

PATRICK H. ROBERTSON, Respondent,

v.THE ATLANTIC & PACIFIC R. R. Co., Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Cole County Circuit Court.

J. N. Litton, for Appellant, cited: Lloyd vs. Pacific Railroad, 49 Mo. 149; Swearingen vs. M., K. & T. R. R. 64 Mo. 73; Morris vs. St. L., K. C. & N. R. R., 58 Mo. 78.

E. L. King, for Respondent, cited: Wagn. Stat. 1872, p. 310, § 43; Fickle vs. St. L., K. C. & N. R. R., 54 Mo. 219; Walther vs. P. R. R., 55 Mo. 271.

NORTON, Judge, delivered the opinion of the court.

This suit was brought to recover damages for the alleged killing, by defendant, of plaintiff's cow. The cause of action was founded upon the fifth section of the Damage Act (Wagn. Stat. 520); and upon a trial in the Cole county circuit court, on appeal from the judgment of a justice of the peace, plaintiff obtained judgment, from which defendant has appealed to this court.

The evidence on the trial tended to show, that plaintiff's cow was killed on defendant's road, near Scot's station and east of the station; that the railroad was fenced, on both sides, from and beyond where the animal was killed to a point a short distance west of the station, where a public road, running north and south, was crossed by said railroad; that there was no cattle guard at and between the public road and said station; that the cow got on defendant's track for the lack or want of such cattle guard; that Scot's station was a point on said road at which defendant's trains stopped to take and put off mails, and receive and discharge passengers and freight; and that the erection and maintenance of a cattle guard at the place where defendant's road crossed, would prevent the public from getting to and from the said station.

Plaintiff, in his evidence, testified that such a result would follow from the maintenance of a cattle guard at the place where his cow entered upon the defendant's road. He also testified that one of the switches of defendant's road extended from the said station across the public road.

Upon the above state of facts, the court, against the objection of defendant, gave the following instruction:

“The jury are instructed, that the defendant is required by law to maintain good and substantial fences on the sides of its road, where the same passes along or adjoining inclosed or cultivated fields, of the height of at least five feet, and to keep and maintain cattle guards at all railroad crossings where fences are required to be maintained and kept up, suitable and sufficient to prevent horses and cattle from getting on the railroad track. If, therefore, the jury shall believe from the evidence, that the plaintiff was, on or about the 13th day of January, 1875, the owner of the cow mentioned in the complaint, and that the cow got on the road of defendant at and from a point where defendant was bound to construct and maintain such cattle guards, and there were no such cattle guards kept up or maintained at such point by defendant; that the cow was killed by the cars of defendant in consequence thereof, at Jefferson township, as stated in the complaint, then they will find for plaintiff, and assess his damages at whatever sum, from the evidence, he has...