Walthers v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1883
• Citation: 78 Mo. 617
• Parties: WALTHERS v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 617

WALTHERS

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

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

REVERSED.

Thomas J. Portis and Smith & Krauthoff for appellant.

M. J. Leaming and Edwards & Davison for respondent.

WINSLOW, C.

This action was originally commenced before a justice of the peace, in Cole county, Missouri, under the double damage act, for killing stock belonging to plaintiff. There was a judgment by default before the justice, an appeal to the circuit court, where there was a trial by jury, which resulted in a verdict for plaintiff for $100, which was doubled by the court, and judgment rendered against defendant thereon for $200. To reverse this judgment, defendant brings the case here by appeal. Many questions are made on the record as to the sufficiency of the complaint, the jurisdiction of the justice, etc., but, since the recent numerous decisions of this court on these points, counsel for appellant have wisely abandoned them. The only questions now urged grow out of the introduction of testimony, and the action of the court on the instructions.

Plaintiff testified in his own behalf, that he was owner of the cows sued for, and that they were killed on defendant's track, at a point where there were cultivated fields on both sides of said railroad, and that he resided in Liberty township, Cole county; the fence was not more than two feet high where the cows were killed, and along the lane, east of where they were killed, about a half a mile, the fence was not more than four or five rails high; the cows were killed dead, and were appraised at $100; I saw tracks on the railroad near where they killed. On cross-examination, he said the animals were killed thirty or forty yards east of the Moreau bridge; and that he did not know of a place near where they were killed, where the fencing was often thrown down by persons going through. His other witnesses made similar statements as to this place in the fence.

John Walthers testified: I saw the cows. The Pacific railroad killed them-- three head. It is cultivated fields on both sides of the railroad there. I think $40 per head is reasonable for the cows. The fence is bad where the animals were killed. The fence was not more than two or three feet high. I saw tracks on the railroad. We could not see any tracks east of where the cows were killed. The weeds and grass were very thick.

Geo. A. Walthers testified: I know these cows; two cows and one heifer. I saw them on the railroad; saw their tracks on the railroad. Two were killed dead, the other died in about an hour after. It is cultivated fields on both sides of the railroad where the cows were killed. The fence is poor, many rails are rotten. Fence is sometimes three, four, five, six and sometimes seven rails high. The cows were worth $40 each.

This was all of plaintiff's evidence.

Defendant introduced George Coleman, who said: I am now and was when the cattle were killed, foreman on this section where they were killed. They got on the railroad track ten rods east of the Moreau bridge. The railroad fence was down on both sides, thrown down by some one that night. The farmers on the north and on the south side of the railroad cross there on mules and horses so as to cut off some distance, and they always leave the fence down. My men put that fence up five times a week sometimes. We always put it up good when we found it down, without any delay. I, with my men, put this fence up good the morning before these cattle were killed. The morning the cattle were killed I came down to them. I then went to the place where people throw the railroad fence down. It was down again. I tracked these cattle right into this gap in the fence. Some fresh cow-dung was on the rails where they stepped over them. I then tracked them from the gap straight to where they were killed. I also saw where they had grazed along up to where they were killed. I put this fence up again.

F. Hardwick testified: I work on the section where the cattle were killed. I remember where they were killed. We put the fence up good at a place near Moreau bridge the morning before these cattle were killed. I saw the tracks where the cattle came in, about two telegraph poles from Moreau river. The fence is often down there. We often find it down, and always put it up when we find it down. It was down when we came to look at the cattle. We put it up good the morning before.

On this evidence the court instructed the jury for plaintiff as follows:

1. If the jury find from the evidence that plaintiff was, on or about the 2nd day of August, 1879, the owner of the three cows mentioned in the complaint, and that said cows got on the road of defendant where the same runs through, along or adjoining an inclosed or cultivated field, and that defendant did not have erected a good and substantial fence on the sides of its railroad, of the height of at least five feet, or have then and there cattle-guards at road-crossings at such points where said railroad passes said cultivated field sufficient to prevent cattle from crossing; that said cows were killed at the time aforesaid by defendant's engine or train of cars, and that the same was done in Liberty township, in Cole county; then the jury will find for plaintiff and assess his damages at whatever sum they may believe he has sustained by reason of the killing, not to exceed the amount claimed.

And refused to instruct the jury for defendant as follows--the first asked being in the nature of a demurrer to the evidence:

2. If the jury believe from the evidence that plaintiff's cattle got upon defendant's right of way in consequence of the fence belonging to defendant having been thrown...