Turner v. St. Louis & San Francisco Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 261
• Parties: TURNER v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 261

TURNER

v.THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Crawford Circuit Court.--HON. V. B. HILL, Judge.

REVERSED.

Jno. O'Day for appellant.

E. A. Pinnell for respondent.

NORTON, J.

This suit was instituted before a justice of the peace in and for Boone township, Crawford county, to recover damages for injury to three cows and one steer, the property of plaintiff. Judgment was rendered before the justice for plaintiff, which was appealed from, and on the trial of the cause in the circuit court plaintiff again obtained judgment, from which defendant has appealed.

1. A JUDGMENT.

As a prerequisite to the right of plaintiff to recover, it was necessary to show that she was the owner of the cattle injured. A careful examination of the evidence as preserved in the bill of exceptions fails to disclose any evidence tending to show that the said cattle belonged to plaintiff. If such evidence was offered on the trial it is not preserved in the bill of exceptions, and acting upon the record before us, we are of the opinion that the sixth instruction, to the effect that there was no evidence that plaintiff owned the cattle, and that, therefore, she could not recover, should have been given, and that error was committed in refusing it.

2. JUSTICES' COURTS: amendments.

There was no error committed by the court in refusing to strike out plaintiff's amended complaint. The justice of the peace was authorized to allow the amendment to be made, and as made it did not change the cause of action.

3. RAILROADS: damage to cattle.

The action is either founded on the 5th section of the Damage Act or is an action at common law, and the first instruction given for plaintiff predicates her right to recover on the 43rd section of the Corporation law. This was erroneous according to the following authorities: 58 Mo. 108; 60 Mo. 212; 65 Mo. 230; 66 Mo. 567.

4. ______; ______.

When stock are killed by the locomotives and cars of a railroad company, the owner, under the 5th section of the Damage Act, is entitled to recover the value without proof of negligence, unskillfulness or misconduct on the part of the officers, servants or agents of such company, unless such accident occurred on a portion of such road that may be inclosed by a lawful fence or in the crossing of a public highway. If, as plaintiff's counsel insists in his brief, the action is neither founded on the 43rd section, supra, nor the fifth section of the Damage Act, but is a common law action, then the plaintiff, before she can recover, must show that the cattle were...