Swearingen v. M., K.&T.R.R. Co.
| Decision Date | 31 October 1876 |
| Citation | 64 Mo. 73 |
| Parties | E. SWEARINGEN, Defendant in Error, v. M., K. & T. R. R. CO., Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Howard Circuit Court.
John Montgomery, Jr., for Plaintiff in Error.
It has uniformly been held by the Supreme Court that this statute does not apply to such places as depot grounds, and that railroad companies are not required to fence at such places. (Lloyd vs. Pac. R. R. Co., 49 Mo. 200; Morris vs. St. L., K. C. & N. R. R. Co., 58 Mo. 81; Stoneman vs. Atl. & Pac. R. R. Co., 58 Mo. 505; Karle vs. Kansas City, St. Joe. & C. B. R. Co., 55 Mo. 483.)
There is nothing in the opinion of the court in Tiarks vs. The St. Louis & Iron Mountain R. R. Co. (58 Mo. 50), in conflict with these decisions. The facts in that case were entirely different from the case here presented, and the law there declared was unquestionably proper upon the facts before the court.
The case of Holman vs. C., R. I. & Pac. R. R. (62 Mo. 562) fully sustains the position of plaintiff in error.
Herndon & Herndon, for Defendant in Error.
Under the 5th section of Damage Act, upon proof of the killing of the stock at the depot grounds, negligence was presumed and should be rebutted with proof by defendant.
This was an action to recover the value of certain live stock killed by the cars of defendant at Estil Station, in Howard county. The record has been prepared, and certified by the judge of the circuit court, in conformity with rule sixteen of this court, and contains the following statement of the proceedings of the trial:
“The plaintiff introduced evidence tending to show that on the night of the 16th day of April, 1874, the stock described in the petition were killed by a train of cars operated by defendant, upon its road at Estil Station, in Howard county; that they were his property, and of the value of $380; that the injury occurred in the night time, and that the stock appeared to have been killed north of the depot and within the switch limits; that the place where the stock was killed was left open for the transaction of the business of the railway company and the public, and was necessary for that purpose.
Defendant asked an instruction that upon the evidence the plaintiff could not recover. This the court refused to give, holding the action was brought under the fifth clause of the Damage Act, and upon proof of the killing or injury of the stock at this point, negligence was presumed, and should be rebutted with proof by the defendant. To which ruling defendant then and there excepted, at the time.
Defendant introduced evidence tending to prove that the defendant was not guilty of any negligence, and plaintiff then introduced evidence tending to prove negligence.
The cause was submitted to the jury upon instructions which declared that upon proof of the killing and injury, the law presumed the company guilty of negligence, where the damage was done at a point on the road where the defendant was not bound to fence, and unless the defendant overcame the prima facie case or presumption, by proof to the satisfaction of the jury that they were guilty of no negligence, the jury should find the issues for the plaintiff.
The court also gave the following instructions asked for by plaintiff, viz: “If the jury believe from the evidence that the horses, mules or colts, or any of them, the property of the plaintiff, were killed by the locomotive and train of cars of defendant, at a point on said road where the law does not require fences to be erected, the law raises the inference of negligence, and the defendant is liable for the value of the stock so killed, unless the evidence shows that the defendant was not guilty of negligence.” “The killing of the stock being proved, it devolves upon defendant to prove to the satisfaction of the jury that defendant was not guilty of negligence.”
The defendant duly excepted to the giving of these instructions. The jury found a verdict for plaintiff. The defendant filed its motion for a new trial, which was overruled, to which ruling it duly excepted.
We have omitted from the certified statement an instruction as to the measure of damages, and one relating to the credibility of witnesses, as they have no bearing on the point in controversy.
The fifth section of the damage act...
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