Smith v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 08 March 1887
• Parties: ALBERT SMITH, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 113

ALBERT SMITH, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

March 8, 1887

APPEAL from the Wayne County Circuit Court, JOHN G. WEAR, Judge.

Reversed and remanded.

GEORGE H. BENTON, for the appellant.

OPINION

THOMPSON J.

This action was brought before a justice of the peace, under the provisions of section 809, Revised Statutes, to recover double damages for killing the plaintiff's cow. It was before this court on a former appeal (20 Mo.App. 689). After being remanded to the circuit court, it was tried anew before the court, sitting as a jury, and a judgment was rendered for twenty-five dollars, double the value of the cow as shown by the evidence. The defendant introduced no evidence. The evidence introduced by the plaintiff, as recited in the bill of exceptions, tended to show the following facts: " The cow sued for was the property of the plaintiff, and was injured to the extent of twelve dollars and a half, in Williams township, Wayne county, in January, 1885, by being struck by a train of cars on the defendant's railroad where the law required the railroad company to build fences that fences had been built by the defendant, but they were in bad condition, and down in several places, and had been in that condition for a long time; that the defendant had notice of such condition; that said cow came onto the railroad, from a pasture, where she had been turned in by the plaintiff to graze, through a defect in the railroad fence running along the side of the said pasture; that the said pasture belonged to one John Carpenter; that the three remaining sides of the said pasture were surrounded by a good fence sufficient to turn stock, and joining on to the railroad fence."

The defendant introduced no testimony.

The defendant requested the court to declare the law as follows:

" The court declares it to be the law in this case, that the duty to fence its road by a railroad company is for the benefit of the adjacent land owner, and, if it appear from the evidence in this case, that the plaintiff's cow herein sued for, strayed upon the defendant's road through a defect in the railroad fence along the side of the pasture of one John Carpenter, and that the other sides of the said pasture were surrounded by a good legal fence, sufficient to turn stock, then the plaintiff can not recover in this action."

It will be perceived that the question is substantially the same as in the case of Carpenter v. The St. Louis, Iron Mountain & Southern Railway Company, (25 Mo.App. 110), and we may refer to our opinion in that case, for the chief grounds for our decision in this case. There is, however, this difference between the evidence in that case, and the evidence in this case: In that case, the evidence did not show how the plaintiff's bull came to be in the field of John Carpenter, from whence it...