Williams v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1883
• Parties: WILLIAMS v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

80 Mo. 597

WILLIAMS

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

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

AFFIRMED.

Geo. W. Easley for appellant.

The statement does not set out facts sufficient to constitute a cause of action, and will not support the judgment. Rowland v. Railroad Co., 73 Mo. 619; Schulte v. Railroad Co., 76 Mo. 320. The modification by the court of defendant's third instruction, was wrong. Clardy v. Railroad Co., 73 Mo. 576. The justice had no jurisdiction.

Torrence & Lithgow for respondent.

EWING, C.

This suit was commenced before a justice of the peace upon the following statement:

Plaintiff states that at the time of the grievances herein complained of defendant was and still is a railroad corporation, duly created and existing under and by virtue of the laws of the State of Missouri, operating and running said railroad, together with its engines and cars through Jefferson township, Linn county, Missouri. That on or about the 11th day of October, 1880, he was the owner of one Norman colt, of the value of $100, which said colt strayed upon the track of defendant in Jefferson township, Linn county, Missouri, at a point where said railroad passes along, through and adjoining inclosed or cultivated fields, or uninclosed lands, and was killed on said date by the engine and cars of defendant in said township. That said colt was killed by reason of the failure of defendant to erect and maintain good and sufficient fences at said point as aforesaid. Plaintiff further states that Jefferson township is an adjoining township to Brookfield township, Linn county, Missouri, and that by virtue of section 809 of the Revised Statutes of the State of Missouri, he is entitled to recover double the value of said colt. being the sum of $200, for which he asks judgment.

Judgment by default before the justice, and appeal to the circuit court, when the defendant appeared and moved to dismiss the suit, because the justice “had no jurisdiction of the subject matter of the suit.” This motion was overruled, and, upon trial, the plaintiff offered evidence tending to prove that the colt got on the track because of a defect in the fence at a place where by reason of the top rail being off, had only been about three feet high all summer.

The defendant offered evidence tending to prove that the fence was in good repair, of sufficient height, and was broken down by plaintiff's and other animals on the night of the accident.

The court gave three instruction for the plaintiff, which, although objected to at the time, yet appellant makes no point concerning them in its brief, and as they are unobjectionable, they will not be further noticed here. Then the court gave two instructions for the defendant, as follows:

1. Unless plaintiff has shown by the preponderance of the evidence in his favor, and to the satisfaction of the jury, that the colt in question got upon the track of the defendant's railroad by crossing over the fence inclosing the railroad track, and that the said fence, where said colt got over the fence, had been suffered by the defendant to be and remain out of repair, and insufficient to prevent ordinary cattle and horses from getting over the same, then the plaintiff is not entitled to recover in this action, and the verdict must be for the defendant.

2. If the jury shall believe from the evidence that the fence where plaintiff's colt got over the same, and thereby went upon the track of defendant's railroad was, prior and up to the time when said colt got over said fence, a post and plank fence at least four and one-half feet high, then the plaintiff cannot recover in this action.

The court refused the third as asked, but gave it after inserting therein the words, “and at the time said fence was broken,” after the word “thereby,” making it read as follows:

3. If...