Sappington v. Chicago & A. Ry. Co.

• Decision Date: 10 June 1902
• Citation: 95 Mo. App. 387,69 S.W. 32
• Court: Missouri Court of Appeals
• Parties: SAPPINGTON v. CHICAGO & A. RY. CO.<SMALL><SUP>1</SUP></SMALL>

69 S.W. 32

95 Mo. A. 387

SAPPINGTON v. CHICAGO & A. RY. CO.¹

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

RAILROADS — KILLING STOCK — FAILURE TO FENCE — DEFECTIVE CATTLE GUARDS — APPEAL — DEMURRER TO EVIDENCE.

1. In a stock-killing case it appeared that plaintiff's mules got into the railway inclosure through an opening between a cattle guard and an adjacent wing fence. Afterwards the animals, apparently running in fright, passed over a public crossing and two other cattle guards a half mile distant from the place where they entered the railway grounds, and were killed by a train some distance beyond. Held, that the defective condition of the cattle guard where the animals entered might be reasonably found to be the proximate cause of the killing of the animals by the train.

2. If cattle enter the inclosure of a railway company's tracks by its neglect to perform a statutory duty in regard to fencing or cattle guards at the place where the cattle entered, it is no defense that the cattle were killed at a place on the track where no breach of duty is shown to exist.

3. Where a defective condition of a structure is open to casual observation and is shown to have existed for several months, that lapse of time, without other proof, warrants the inference of notice to the party bound to maintain the same, and it therefore warrants a finding of negligence in failing to put the structure into proper condition.

4. Where the court instructs, at the request of defendant, that a cattle guard is sufficient within the meaning of section 1105, Rev. St. 1899, if it ordinarily, usually, or generally prevents cattle from getting on the track, defendant cannot complain of the instruction on appeal.

5. Parties are bound on appeal by positions they voluntarily assume in the trial court.

6. A party does not waive a demurrer to the evidence by afterwards asking an instruction on the merits of the case.

7. Every fair and reasonable inference of fact which the evidence will bear should be made to support the verdict of a jury.

8. The party not appealing cannot complain of an instruction given at the trial more favorable to the losing party than the law permits.

(Syllabus by the Court.)

Appeal from circuit court, Audrain county; Elliott M. Hughes, Judge.

Action by S. F. Sappington against the Chicago & Alton Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Franklin Houston, for appellant. P. H. Cullen, for respondent.

BARCLAY, J.

This case is due to a collision of four mules with a train of the Chicago & Alton Railroad to the damage of the former. The owner of the mules sues for statutory (double) damages under section 1105, Rev. St. 1899.

The petition charges that the animals got upon defendant's railway at a place where it was the duty of defendant to build and maintain lawful fences on each side of its railroad and to maintain cattle guards and cross fences sufficient to prevent mules from getting on the railway, and that in consequence of the failure of defendant to maintain such fences and guards plaintiff's mules went upon the railway of defendant, and were struck by the locomotive and cars of defendant and killed. The damages were alleged at $400, and judgment for double damages was prayed. The petition was not challenged in any way. The answer was a general denial. The case was tried before Judge Hughes with the aid of a jury. The result was a verdict for plaintiff for $375, which the court doubled in accordance with the statute. Rev. St. 1899, § 1105; Kingsbury v. Railway Co., 156 Mo. 379, 57 S. W. 547. The only point made on this appeal is that the case should not have been submitted to the jury for want of testimony to prove plaintiff's case.

The testimony tends to show that plaintiff was the owner of the mules which were killed, and that their aggregate value was $350 or $400. Plaintiff lived a few miles from the defendant's railway, in Audrain county. The mules escaped from his inclosure one night in February, 1901. There was snow two inches deep on the ground at the time. The next day about noon plaintiff traced their wanderings. The mules ran along the public roads until they reached defendant's railroad. The testimony tends to show that the footprints of the mules were discovered in an open space between a cattle guard and a wing fence connecting the former with the main line of fencing alongside of defendant's railway at that place. The general direction of the public road which the cattle guard adjoins is north and south. On the east side of the public road there a space is open between the cattle guard and the wing fence of about 14 inches (according to plaintiff's account) by actual measurement, and the line of fencing runs from that point out from the railway track at an angle of about 45 degrees until the general level of the connecting fence parallel with the railway is reached. Through the opening thus described the tracks of the animals were clearly traced by the plaintiff on the morning following the escape of the animals from his inclosure. The aperture in the fence was so large that plaintiff easily rode through the place mentioned on horseback, following the tracks of his animals. The accident to them, however, did not happen there, but further east, beyond another public road, which crossed the railway at a right angle about a half mile east of the first-named road. On each side of that road were cattle guards. The animals passed over both of these cattle guards (as their tracks indicate) running at a high rate of speed, as plaintiff said he could tell by their hoof marks. They were killed, or at least their bodies were found bearing every evidence of that fact, on defendant's right of way, near the track, beyond the public road last mentioned. That they were killed by a locomotive or cars of defendant is a very obvious inference from the plaintiff's testimony. It was contradicted in many respects by that of defendant, but the issue of fact was for the jury and ...