Rutledge v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1883
• Citation: 78 Mo. 286
• Court: Missouri Supreme Court
• Parties: RUTLEDGE v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

78 Mo. 286

RUTLEDGE

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Shelby Circuit Court.--HON. JOHN T. REDD, Judge.

AFFIRMED.

Geo. W. Easley for appellant.

R. P. Giles and King for respondent.

PHILIPS, C.

This is an action for damages for killing cattle by the defendant railroad, based on what is known as the 43rd section. Wag. Stat., art. 2, ch. 37. There were three counts in the petition. It is not necessary to set them out as they are good in form. The answer is a general denial.

On the trial, plaintiffs introduced testimony tending to prove that during the years 1878, 1879 and 1880, plaintiffs were partners and were still such, and were the owners of the stock described in their petition; that all of the stock sued for by plaintiffs in this cause were killed and crippled by defendant at the times set out in plaintiffs' petition, and were of the value therein claimed; that all of said stock were killed and crippled between the corporation line at Clarence station and three miles east of there, Messick crossing, being three miles east of Clarence station, except one head of said stock valued at $20, which was struck and killed on said Messick public road crossing; that the south line of defendant's fence between said Messick crossing and Clarence station was at the time stated in plaintiffs' petition out of repair, and that there were at each of said times when said stock was injured, several places that stock could have and had gone through and got upon defendant's track, although some ordinary repairs had been made on said fence by defendant, a little before the stock was killed on the 25th day of July, 1879; that defendant's right of way was inclosed from Clarence to Messick's crossing, and plaintiffs' stock and the stock of others grazed on the uninclosed prairie lands south of the defendant's inclosure; that there is a public highway running along adjoining to, located on the unimproved prairie lands and parallel with defendant's right of way on the south side and extending from Messick public road crossing to Clarence station, except that travelers have deviated from a straight line for their own convenience and gone some fifty yards farther south than the road is located in order to get by bad places in the road, but that said public highway south of the track is a county road; that the land south of said public road was uninclosed prairie land, and that there were cultivated fields on the north side of defendant's track.

Whereupon the defendant prayed the court to instruct the jury as follows: “Admitting all of the facts adduced by plaintiffs to be true, the finding must be for defendant.” Which instruction the court refused to give. To the action of the court in refusing to give said instruction, defendant at the time excepted.

Defendant then introduced testimony tending to prove that all of the stock sued for in the first and fourth counts of plaintiffs' petition was killed and crippled while on Messick's public road crossing; that its south line of fence had been repaired the evening the stock was killed, sued for in the third count of plaintiffs' petition, but that said stock was inclined to be breachy and had been driven away that evening by defendant's employes; that the fence where the stock got through and which is sued for in plaintiffs' third count had been originally a good and sufficient fence, five feet high, and although it had been out of repair before, yet at the time said stock was killed, it was in places in ordinarily good condition and sufficient to keep out stock if it had not been breachy and inclined to break through. Thomas Mitchell, a witness for defendant, then identified Messick public road crossing and defendant's track as being on the east line of section 23, township 57, range 12. Defendant offered in evidence the order of the county court of Shelby county, establishing and locating a public highway from the town of Clarence, Shelby county, to the east line of section 23, township 57, range 12, which said record was admitted by plaintiffs as being the record and order of the county court of Shelby county. To the introduction of said record in evidence plaintiffs objected, because irrelevant and immaterial, which said objection was by the court overruled. Defendant then read said record and order of said county court in evidence.

It is not deemed essential to set out the instructions given for plaintiffs, as no questions arise on them worthy of discussion. The following instructions were requested by defendant and refused:

1. The court declares the law to be that under the pleadings and evidence plaintiffs cannot recover, and the finding should be for defendant.

2. The court declares the law to be that defendant is not required under section 809, Revised Statutes, to fence its track at a place where there is a public highway running parallel with and adjoining its right of way, and if the stock sued for came upon defendant's track by reason of a failure to fence at such place, they should find for defendant.

3. If the jury believe from the evidence that the stock sued for was struck on defendant's track between the Messick public road crossing and Clarence station, and that in the year 1870 there was a public highway located on a line with the south boundary of defendant's right of way and adjoining and running parallel with said right of way between said Messick crossing and Clarence, then defendant was not bound to fence on the south side of its track between said points, and plaintiffs cannot recover for failure to fence at said place, in this case, and they should find for defendant.

4. If the jury believe from the evidence that the fence, where plaintiffs' stock sued for in the third count of the petition went through and upon defendant's track, was originally a good and sufficient fence four and one-half feet high, and that it had been repaired the night before the stock sued for in the third count of plaintiffs' petition were killed, and that defendant exercised ordinary care in keeping said fence in repair, then defendant is not liable for the stock sued for in said third count; and by ordinary care, as used in this instruction, is meant such care as would be used and exercised by an ordinarily careful farmer in keeping up his fences.

The court upon its own motion instructed the jury as follows: Unless the jury find that the defendant's fence west of Messick's crossing and along the south line of its right of way was so far defective as to permit cattle to enter upon its railroad; and unless they further find that the cattle described in the petition, or some one or more of them, did by reason of such defects in said fence, enter upon defendant's railroad, they should find a verdict for defendant upon all the counts in the petition.

The jury found the issues for the plaintiffs, except as to one of the cows killed on the road crossing. The defendant brings the case here on appeal.

1. RAILROADS: their duty to fence.

I. It...