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

• Decision Date: 31 October 1884
• Citation: 83 Mo. 678
• Parties: ROSECRANS v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 678

ROSECRANS

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

Supreme Court of Missouri.

October Term, 1884.

Appeal from Clark Circuit Court.--HON. BEN. E. TURNER, Judge.

AFFIRMED.

Wells H. Blodgett and F. T. Hughes for appellant.

Under all the circumstances the court should have instructed the jury to return a verdict for defendant. Henze v. Railroad Co., 71 Mo. 639; Whar. on Ev., § 415; Pierce on Railroads, 292, 320, 322; Rudolph v. Lane, 57 Ind. 115; Sacket on Inst. to Juries 33; Tucker v. Duncan, 14 C. L. Jour. 14; Morgan v. Durfee, 69 Mo. 476; Thompson on Charging Jury 44, 45; Railroad v. Gretzer, 46 Ill. 82; Com'rs. v. Clark, 94 U. S. 284; Railroad v.Stumps, 55 Ill. 367; Seibert v. Railroad Co., 49 Barb. 583; Lafferty v. Railroad Co., 44 Mo. 291; Seibert v. Railroad Co., 72 Mo. 565.

Hagerman, McCrary & Hagerman for respondent.

(1) The Supreme Court will not interfere where the verdict is against the direct and uncontradicted testimony of witnesses, on the ground that the jury may have discredited it. Gregory v. Chambers, 78 Mo. 294; Steamboat, &c., v. Matthews, 28 Mo. 248; McAfee v.Ryan, 11 Mo. 365. (2) It has been held that if animals are found badly wounded and dead near a railroad track and blood and hair appear on the track that the presumption of law is that they were struck by the train. Railway Co. v. Whalen, 42 Ill. 396; Blewett v. Railway Co., 72 Mo. 582; Jantzen v. Railway Co., 83 Mo. 171; Railway Co. v. Panco, 56 Ill. 308; Railway Co. v. Dement, 44 Ill. 74. If the testimony for plaintiff made a prima facie case that the horses were struck by the train, then even a nisi prius court could not set aside the verdict, because unimpeached witnesses testify to the contrary. French Bank v. Beard, 54 Cal. 480; Robinson v. Railway Co., 9 Fed. Rep. 877; Elwood v. Tel. Co., 45 N. Y. 549; Kenney v. Railroad Co., 70 Mo. 243; Robbins Case, 2 Black 418; Keyser v. Railway Co., 56 Iowa 440; Stutsman v. Railway Co., 53 Iowa 760; Clark v. Railway Co., 55 Iowa 455. (3) It is peculiarly the province of the jury to weigh the evidence and they have the right to accept circumstantial and to reject the direct evidence of witnesses. This has been repeatedly held. Territory v. Egan, 13 N. W. Rep. 572; U. S. v. Exp. Co., 15 Fed. Rep. 867; Marcotte v. Ry. Co., 8 Am. and Eng. Ry. Cas. 306; Babcock v. Ry. Co., 17 N. W. Rep. 909. Plaintiff's testimony, though circumstantial, was nevertheless affirmative. Chubbuck v. Railroad Co., 77 Mo. 591; Sullivan v. Railroad Co., 72 Mo. 195; Martin v. Railroad Co., 13 N. W. Rep. 424; Mack v. Railway Co., 77 Mo. 232. (4) The evidence that there were appearances of dragging is not a matter of opinion, but competent evidence of a fact. Abbott's Trial Ev., 587.

NORTON, J.

This case is before us on defendant's appeal from a judgment rendered for plaintiff by the circuit court of Clark county for the alleged killing by defendant of three of plaintiff's horses, and crippling a fourth one.

We are asked to reverse the judgment on the ground that the verdict is against the evidence. It has been held by this court so repeatedly that where there is evidence upon which the verdict of the jury may stand, that this court will not interfere upon the ground that it is against the weight of evidence, unless the evidence so preponderates against the finding as to show that it was the result of prejudice, that we deem it unnecessary to cite the cases where it is so ruled, or to undertake to vindicate the correctness of the ruling. The only question, therefore, which the appeal presents is not whether the verdict is supported by a preponderance of the evidence as it appears to us in the record, but whether the preponderance against the verdict is so great as to satisfy our minds that it was the result of passion or prejudice.

In this case it is admitted that defendant's road, though passing through an enclosed field, was not fenced where the horses of plaintiff went on the track, and plaintiff's evidence shows that after entering on the track they were tracked from that point to within about twenty-three feet of the east end of the railroad bridge built across a pond of water, where the tracks ceased; that one of the horses was found dead near the embankment near the east end of the bridge and two others, one being a colt, were found dead in the pond of water by the side of and under the bridge; that from a point twenty-three feet east of the bridge that the ground was torn up as if something had been dragged over it; that there was hair and blood on the track from this point out to twenty-eight and one-half feet on the bridge where the ties were pried apart and horses put through and that there was blood and hair there; that the horses were badly mutilated, ribs protruding, flesh torn open, entrails sticking out, and one horse's leg torn off and one of them split on his back from his fore shoulders to his tail. These facts were testified to by four or five witnesses, and under the ruling of this court in the case of Blewett v. Railroad Co., 72 Mo. 583, made out a primafacie case for plaintiff. In that case a cow was found by the track of defendant, torn and mutilated, and this was held to make out a prima facie case that she was struck by the engine, and sufficient to sustain a verdict for plaintiff.

It is, however, insisted by appellant's counsel that this prima facie case was entirely overcome by the evidence of Howard and Sherrod, one of whom was the engineer and the other the fireman, who testified that they were running the engine, and that when they first saw the horses on the track they were about forty yards ahead of the engine; that the whistle was blown, and the engine reversed; that the horses ran up the track and jumped into the bridge; that one of them, after struggling on the bridge, jumped off into the...