Sowders v. St. Louis & S. F. R. Co.

• Decision Date: 23 September 1907
• Parties: SOWDERS v. ST. LOUIS & S. F. R. CO. et al.
• Court: Missouri Court of Appeals

104 S.W. 1122

127 Mo. A. 119

SOWDERS v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

September 23, 1907.

1. RAILROADS — INJURIES TO ANIMALS — ACTION FOR DOUBLE DAMAGES — DEFECTS IN FENCE.

In an action for killing stock under the double damage act (Rev. St. 1899, § 1105 [Ann. St. 1906, p. 945]), making a railroad liable in double damages for the killing of stock gaining an entry to the right of way at places where the railroad is required to maintain sufficient fences or cattle guards, it is the condition of the fences or guards at the point where the animal enters the right of way, and not the point of collision, which determines the liability of the railroad.

2. SAME.

Where an animal is killed at a point where the railroad is required to maintain proper fences, and there is no evidence to show where the right of way was entered, it is a proper inference from the fact of collision at that point that the animal entered where the collision occurred; but the inference being a disputable presumption of fact, where there is evidence as to the place of entry, it does not prevail.

3. EVIDENCE — PRESUMPTIONS — NATURE AND SCOPE.

Presumptions are divided into two classes: Presumptions of law, which are irrebuttable and proceed as an arbitrary rule of law, to the effect that a particular inference of fact shall necessarily be drawn from certain established facts, and rebuttable presumptions or presumptions of fact, which will not be permitted to contradict or overcome facts actually proved.

4. TRIAL — INSTRUCTIONS — EFFECT OF FAILURE TO REQUEST.

Where plaintiff requests no instructions, it is not error for the court to refuse to instruct for him at defendant's request; the right of either party to move the court to give the instructions, granted by Rev. St. 1899, § 748 [Ann. St. 1906, p. 733], being a personal privilege which he may waive.

5. SAME — DUTY OF COURT TO INSTRUCT.

The court is not required to instruct the jury on its own motion under Rev. St. 1899, § 748 [Ann. St. 1906, p. 733], providing that the court may of its own motion give instructions.

6. SAME — APPLICABILITY OF INSTRUCTIONS TO CASE.

In an action for killing a cow, under the statute making a railroad liable in double damages for the killing of stock which has entered the right of way through defective fences or cattle guards, where the evidence shows that the cow entered the right of way over a cattle guard which was admittedly insufficient, and there is no evidence that the cow entered through a defective fence, the failure to define a lawful fence by instruction is not error.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by W. H. Sowders against the St. Louis & San Francisco Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

L. F. Parker and Moses Whyback, for appellants. J. V. Conran, for respondent.

NORTONI, J.

The defendant appeals from a judgment against it under the double damage act (section 1105, Rev. St. 1899 [Ann. St. 1906, p. 945]) for having killed plaintiff's cow, which, it is alleged, came upon defendant's track by reason of its failure and neglect to erect and maintain sufficient fences and cattle guards, as required by the statute mentioned. It appears from the evidence on the theory of plaintiff that his cow passed from the public road over or through defendant's cattle guard adjacent thereto, and inside of the railroad right of way just north of the public road crossing; that, while so inside the right of way, defendant's locomotive and train south-bound collided therewith at a point about 20 feet north of the cattle guard, by the force of which collision the cow was thrown to the southward over the cattle guard, falling in the public road between the rails of its track, and about the third railroad tie south of the cattle guard, at which point within the public road the cow was mangled beneath the locomotive and dragged about 180 yards to the south, where the train was stopped and the carcass removed.

Defendant's theory of the case is that the cow was lying upon its track at the crossing of the public highway when the collision occurred, and it is not liable therefor under the double damage act, as it is neither permitted nor required to fence its tracks across the public highway. Acord v. Railway Co., 113 Mo. App. 84, 87 S. W. 537. Several witnesses testified on the part of plaintiff that the cattle guard was not sufficient, as required by the statute, supra, to prevent cattle from passing from the public highway over the same into the railroad right of way. The cattle guard consisted of an excavation under the track with rails or cross-bars lengthwise of the track across the same. This excavation had been permitted to fill near or almost to the top by the accumulation of dirt and gravel therein, so that cattle could, and, as was shown, had been in the habit of walking over the same, notwithstanding the cross-bars or slats mentioned. A small boy testified that he saw the plaintiff's cow pass over the cattle guard. No one gave evidence in the case who actually saw the collision. Several for the plaintiff testified that, while there was apparently no blood or hair inside the right of way where the locomotive is alleged to have run upon the cow, the stones or ballast on the track about 20 feet north of the cattle guard was torn up and disarranged, indicating that as the point of collision. One witness said: "It looked like the locomotive run under her and into her feet, and tore up the rock. * * * Yes, sir; she was struck inside the right of way. It was plain to be seen. She was pitched on the road crossing from the cattle guard, on the third tie after it went over the cattle guard." And it was also shown there was cow's hair resembling that of the cow in question on the slats or bars of the cattle guard, indicating the cow had been dragged across the same to a point in the public road, where, in the language of one of the witnesses, she was first "dumped." One witness testified: "Q. I will ask you where she was killed, Mr. Ward. A. She was struck north of the crossing, about 20 feet from the cattle guard in the right of way. Q. Inside the right of way? A. Yes, sir; that is as near as the signs was. You could see where she was struck, she was dumped — the first place she was dumped was the third tie outside the public road. That is not in the crossing. She was dumped over and the third tie is where she went under. She went under the locomotive in between the ties. She was drove in between the ties and got under the locomotive, and was carried about 50 rods."

There was but one witness introduced by defendant. This was its section foreman, who was a mile and a half distant at his home at the time of the occurrence. He did not see the collision, and had no actual knowledge of precisely where it occurred. He gave evidence to the effect that on the following day he found and buried the cow, traced the blood, etc., to the crossing of the highway, where he investigated, and found the cow had been lying on the track and was run upon by the locomotive at the point where plaintiff's witness said she was first "dumped" after having been pitched from the north by the locomotive over the cattle guard. Witness also said: "I looked both ways. I could not see any place only from the road crossing south that there had been anything drug. She was struck undoubtedly on the crossing." On the evidence of this witness, defendant requested, and the court refused, to instruct as follows: "The court further instructs the jury that if you find from the evidence that the plaintiff's cow was killed by defendant's train, and at the time she was struck by the same she was on a public crossing over defendant's railroad, then the presumption is, in the absence of proof to the contrary, that she entered on its track where struck, and the plaintiff cannot recover; and the burden is on the plaintiff to show to your satisfaction by a preponderance of the evidence that she did not enter on the track on the public road, but at some point thereon where the defendant was required to fence." In actions under the railroad fence law, there are two propositions essential to notice as well settled. They are: First. It is the point at which the animal enters the right of way, and not the point of collision, which determines the liability or nonliability of the defendant on account of killing stock. Acord v. Railway Co., 113 Mo. App. 84-98, 87 S. W. 537; Bumpas v. Wabash, 103 Mo. App. 202, 77 S. W. 115; Dickinson v. Wabash Ry. Co., 103 Mo. App. 332, 77 S. W. 88; ...