Walton v. Wabash Western Ry. Co.

• Decision Date: 20 December 1888
• Parties: THOMAS H. WALTON, Respondent, v. THE WABASH WESTERN RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 634

THOMAS H. WALTON, Respondent, v. THE WABASH WESTERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

December 20, 1888

Appeal from Chariton Circuit Court. --HON. G. D. BURGESS, Judge.

REVERSED.

The case is stated in the opinion.

H S. Priest and Geo. S. Grover, for the appellant.

(1) There was no evidence in the cause to support the verdict. Moore v. Railroad, 28 Mo.App. 622; Ehret v Railroad, 20 Mo.App. 251. (2) The court gave improper and refused proper instructions. As to the improper instructions given: White v. Chaney, 20 Mo.App. 389; Lester v. Railroad, 60 Mo. 268; Benson v Railroad, 78 Mo. 504. As to the proper instructions refused: Daniels v. Railroad, 62 Mo. 43; Fitterling v. Railroad, 79 Mo. 504; Ridenore v Railroad, 81 Mo. 227; Laney v. Railroad, 83 Mo. 466.

A. W. Mullins and Crawley & Son, for the respondent.

(1) The court did not err in giving instructions to the jury. The plaintiff's first instruction, standing alone, fairly and correctly directed the jury, and it is in harmony with the defendant's fifth instruction, given by the court, and instruction numbered two, given on the court's own motion, which is defendant's third instruction as asked, but made to apply to the second count of the petition upon which alone the case was submitted to the jury, instead of the second and third counts of the petition, as asked by defendant. These instructions, considered together, presented the case to the jury with unexceptionable fairness, and, indeed, very favorably for the defendant. The case was submitted to the jury on the same theory by both parties upon the instructions asked and given, and the defendant ought not, therefore, to be here heard to complain on the alleged ground that the court misdirected the jury. Holmes v. Braidwood, 82 Mo. 610; Walker v. Owen, 79 Mo. 563, 568; Whetstone v. Shaw, 70 Mo. 575; Nance v. Metcalf, 17 Mo.App. 183, 190; Loomis v. Railroad, 17 Mo.App. 340. (2) The evidence was sufficient to authorize the submission of the case to the jury and to support the verdict and judgment. Gee v. Railroad, 80 Mo. 283; Ehret v. Railroad, 20 Mo.App. 251; Lepp v. Railroad, 87 Mo. 139; Walthers v. Railroad, 78 Mo. 617; Jantzen v. Railroad, 83 Mo. 171; Walthers v. Railroad, 55 Mo. 271, 276; Blewett v. Railroad, 72 Mo. 583; Briscoe v. Railroad, 25 Mo.App. 468; McGuire v. Railroad, 23 Mo.App. 325; Kelly v. Railroad, 70 Mo. 604, 607; Claflin v. Rosenberg, 42 Mo. 439.

RAMSAY J.

This action was instituted to recover damages for the killing of twenty-one head of cattle belonging to the plaintiff, on the railway of defendant, in the month of June, 1887, at a point on said railway where it passed through the improved lands of plaintiff. As originally drawn, plaintiff's petition contained three counts. The first stated a cause of action at common law and was based on the negligent management of the defendant's train. The second stated a cause of action under section 2124 of the Revised Statutes, and the third was based on section 809 of the statutes. So far as is necessary to the determination of the question here considered, the answer was a general denial. The plaintiff used upon the trial, and has furnished us with the accompanying plat showing railway and farm of plaintiff at the point where plaintiff's cattle were killed and crippled.

The evidence introduced by plaintiff showed that during a night in June, 1887, twenty-one head of cattle-- i. e., eight three-year-old steers, three two-year-old steers, three yearling steers, six heifers and one four-year-old cow, belonging to plaintiff were killed and crippled on defendant's railroad track at different places between a point fifty yards east of the trestle-work, as indicated on this plat, and the gate which opens from the railroad grounds into the twenty-five-acre clover pasture; that the fence separating the east clover pasture and the railroad right of way was a new fence, in good condition, and that the gate at the farm crossing opening from this pasture onto the railroad grounds was in good condition with proper hinges and fastenings; that the new railroad fence extended west of the gate

(Image Omitted)

TABLE

mentioned about one hundred and twenty yards between the twenty-three-acre field and the defendant's lands, and from that point on west to the trestle; the railroad fence had been burned down and was not in good condition; that the twenty-three-acre inclosure was separated from the twenty-five-acre pasture east of it by a post and wire fence and from a two hundred-acre woods pasture south of it by a rail fence. The evidence further showed that on the west end of the twenty-three-acre field, to the extent of eleven acres, was a growing crop of wheat which was from two to three feet in height and beginning to head out; that on the east end of this field, to the extent of twelve acres, was a growing crop of clover; that prior to the time the cattle were killed they were pastured in the two hundred-acre woods pasture and had access to the twenty-five-acre pasture out of which the gate mentioned led to the railroad track; that this gate and one north of the road were used by plaintiff in passing through with teams and stock and the road through them was used by the neighbors in hauling. The evidence showed that the injury to the cattle was done in the night and from indications and signs along the track, that the cattle were struck by the train going east, except in one instance where one animal appeared to have been struck by a west-bound train.

The evidence tending to show the point where the cattle got upon the track, introduced by plaintiff, was as follows: Thomas H. Walton, the plaintiff, testified: " The day before my cattle were killed, they were in my woods pasture, and they crossed over that pasture into the clover field, that is, they were grazing in the clover the day before the accident, and back in the pasture south of it. * * * The cattle were in the clover field and pasture, and were left there that night * * *. I examined the place the next morning where the cattle were killed. I went all along the fence next to the railroad. If there were any indications of their having got on the track through the wheat field, I never saw them. This was in June. The wheat was about two feet and a half high in the field. If a part of the cattle had gone through the wheat field, I could likely have seen the tracks. I examined to see if they went through the gate, and saw no tracks there. It had rained that morning, a little light shower of rain. That was before I got there. So far as I observed there were no tracks through the gate. I did not see where they had gone on the track. I am positive that I saw no indications of where they got on the track. * * *

Q. Did you see any tracks of cattle through the clover where the clover and the wheat were in the same field?

A. No, sir, I was not sure they were cattle. I found in there what looked like tracks * * *. The fence separating the clover and wheat patch from the two hundred-acre pasture was not a very good fence. * * * My cattle had broken over on this clover next to the two hundred acres before the killing took place. * * * This clover in the clover field was mighty fine pasture. It was red clover and as fine as could be. * * *

Q. I will get you to state if there was any place in that clover field in your examination of the cattle tracks, that you could see any cattle tracks?

A. No, sir.

Q. (By the court) Where did the cattle get on the railroad track?

A. I do not know, sir.

Q. Don't you know from the signs?

A. I do not know."

Frank Woods on his cross-examination upon this point testified as follows:

Q. " Did you notice where any of his cattle that had been killed had come upon the track and had been killed?

A. I did not see any place; one place showed there had been some cattle at the gate.

Q. You saw tracks at the gate?

A. There were some tracks there.

Q. Did you see which way these tracks went that were there at the gate?

A. I think there were some tracks going both ways.

Q. That is, going through the gate from the road, and from the road into the field?

A. Yes, sir, I think there were. I guess there were some that must have gone out of the gate.

Q. Did you see any tracks through the field?

A. No, sir, I did not examine, did not observe them; did not examine the clover because the wire fence was up. The only tracks that I saw were leading through the gate into the east clover field up at the crossing. There I saw cattle tracks both ways. The ground was hard along there. That was the only place I noticed where cattle had gone from the field on the right of way."

On re-direct examination, this witness said: " There are two gates there, one north of the road, and one south of the road. Mr. Walton uses these two gates passing through with his teams and stock. There is a road that the neighbors use for hauling. It is a plain open road on which the grass is all worn off. I never noticed how many cattle tracks I saw through the gates. I could not tell how many there were. There had been cattle passing through there. I did not notice the number of the tracks. I was not called on to notice that."

Mr Pitney, on direct examination, said: " I was at the gate leading out of the clover field onto the railroad right of way. I did not make any examination for tracks. The cattle were fifty or sixty yards from the trestle-work; they were killed and crippled all along there up to the gate. There was one killed and three crippled right at the gate." On cross-examination, this witness said: " Did not see any trace of cattle having gone on the track from the wheat field. Never noticed any of the wheat trampled down. It was...