Wade v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1883
• Citation: 78 Mo. 362
• Parties: WADE v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 362

WADE

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

T. J. Portis and Smith & Krauthoff for appellant.

G. T. White for respondent.

MARTIN, C.

This was an action against a railroad company for the killing of a bull. The action was commenced on the 2nd day of March, 1878, before a justice of Jefferson township in Cole county, and was brought under the 43rd section of the 2nd article of the Railroad Act as amended by the act of February 18th, 1875. 1 Wag. Stat., 310, § 43; Sess. Acts 1875, p. 131. The action was commenced in the name of George E. Wade, the owner of the bull, and the present plaintiff, after his death, as sole devisee under his will, was substituted as his successor to the right of action. The complaint upon which the action was founded, reads as follows:

“Before H. W. Long, a justice of the peace within and for the State of Missouri, county of Cole, Jefferson township.

George E. Wade, Plaintiff,

)

v.

)

Complaint.

Missouri Pacific Railway Company,

)

Defendant.

)

Plaintiff states that defendant is a corporation duly incorporated under the laws of the United States and State of Missouri, and is acting as such; and that in the month of October, 1877, while running and operating its locomotives and cars on its railroad track in said township at a certain point of uninclosed timber land near Gray's Creek, wrongfully and unlawfully neglected to erect and maintain a lawful fence on the sides of their said railroad where it passes through uninclosed lands, and unlawfully failed to construct cattle-guards where fences are required sufficient to prevent horses, cattle, mules and other animals from getting on their said railroad at said points, as is required by the statutes in such cases, and that by reason and on account of such failure to erect said fences and construct said cattle-guards, a certain bull, the property of plaintiff, and of the value of $100, went on to said railroad track at said point, and whilst said bull was on said track as aforesaid, he was run over and killed by said locomotives, cars and trains of defendant, then and there run and managed by its agents and servants. And said bull was wrongfully killed in the manner as herein stated in consequence of his getting on to railroad track as aforesaid, and not having cattle-guards as aforesaid. Wherefore plaintiff asks judgment for $200, double the damage sustained by him by reason of the matters and things herein stated, and under the statute concerning corporations, railroads and railroad companies.

And for further cause of complaint, plaintiff says that whilst he was the owner of the bull aforesaid, of the value aforesaid, and defendant, whilst operating its locomotives and trains in the township aforesaid, and at the time aforesaid, by its agents and servants so negligently and carelessly ran the same at and near a public crossing, and among other acts of carelessness and negligence then and there failed to ring the bell or sound the whistle, and thereby carelessly and negligently ran over, on their railroad track, said bull of plaintiff and killed him, whereby plaintiff says he is damaged in the sum of $100, and for which plaintiff asks judgment.”

The trial before the justice was by default, and the value of the animal was assessed at $100, and judgment rendered for $200, being double damages under the statute. At the trial in the circuit court, which came off on the 28th day of May, 1880, the defendant appeared by attorney, and the plaintiff introduced witnesses, who knew the bull and who saw him shortly after he was killed. From their evidence, which is of a very circumstantial character, there seems to be no doubt about the facts surrounding the death of the bull. He was struck at a point on the railroad near Gray's Creek about fifteen feet west of a public crossing, and about forty-five feet east of the east abutment of a railroad bridge which spans the creek. There was no fence or enclosure of any kind to keep him off the track at that point. After he was struck he dragged himself down to the bed of the creek where he died. He weighed about 1,300 pounds, and his heavy tracks on the grass indicated that prior to the accident he had been grazing near the bridge. His blood and hair left on the railroad track, and the car grease on his carcass plainly pointed to the cause of his decease, and the exact point on the track where he met his fate. The evidence tended to show that he was four or five years old, of the Durham and Duchess breed, and that he was worth from $50 to $75. The defendant introduced no evidence, and the jury returned a verdict assessing the damages at $100, from which the defendant has appealed. A good many instructions were asked and given and refused, but which need not be considered in detail in disposing of the case.

I. It is objected that the complaint does not expressly negative the possibility of...