Vinyard v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 92
• Parties: VINYARD, Appellant, v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.
• Court: Missouri Supreme Court

80 Mo. 92

VINYARD, Appellant,

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jefferson Circuit Court.--HON. L. F. DINNING, Judge.

AFFIRMED.

Thomas & Vail for appellant.

Smith & Krauthoff with Thomas J. Portis for respondent.

HENRY, J.

This is an action commenced by plaintiff in the circuit court of Jefferson county to recover of defendant double damages for the killing of a cow, the property of plaintiff, by a train of defendant's cars. The petition alleged that the cow got upon the track of defendant's road, where it passed through an inclosed field of plaintiff, in consequence of a defective fence which was erected by defendant, and which it was the duty of defendant to maintain, etc.

The evidence disclosed the following facts: At the place where the cow got upon the track, two of the upper planks of a panel of the fence had been sawed off at one end, about two months before the cow was killed, and plaintiff had securely, as he testifies, repaired it, “by nailing a plank perpendicular with and to the post, and nailing the ends of the sawed plank to it.” It does not appear that the company had any notice of these facts. Two witnesses for plaintiff testified that they saw this panel of the fence down; one of the witnesses, that he saw it down two days before the cow was killed, and the other, that he saw it down the day before the cow was killed, and that it was down two or three days before the cow was killed.

The cause was tried by the court without a jury, and the following declaration of law made by the court is complained of by appellant: “If the defendant had erected and maintained a plank and post fence, at least four and one-half feet high, along and on each side of its railroad, and plaintiff had a field on the east side of said road, and defendant's fence inclosed said field, and a day or two before the cow of plaintiff escaped from plaintiff's field onto defendant's road, and was by its engine and cars run over and killed, some one without the knowledge or consent of defendant had sawed a couple of the planks in said fence, so that they fell down, leaving a gap in said fence, and said cow escaped from said field through said gap, and defendant at the time of said escape and the killing had no notice or knowledge of said gap in the fence, then plaintiff cannot recover unless the court find from the evidence that defendant was guilty of negligence in leaving said gap down,...