65 Mo. 172 | Mo. | 1877
This was a suit before a justice of the peace to recover damages for the killing of a steer by a train of defendant’s cars, in August, 1874. There was a judgment against defendant in the justice’s court from which it appealed to the circuit court, where, on a trial anew, plaintiff again had judgment, from which defendant has appealed to this court.
The facts, as disclosed by the evidence, were that plaintiff’s steer got into the field of one Conger, through which the road of defendant passed, and that, in attempting to drive it from the field, it went on to defendant’s track through a gap in the railroad fence left open by Conger for his accommodation in passing from one side of his field to the other, with consent of defendant. There was no evidence showing how the steer got into Conger’s field. Conger testified, that outside his field, a few yards from his fence, the railroad fence was often down, and, when up, was not
Defendant asked the following, which was refused: If they believe, from the evidence, that plaintiff’s ox was trespassing in the field of O. B. Conger, and that defendant’s road was fenced on the sides of the road where it passed through said field, and plaintiff’s ox got on the track through an open gate, left down by said Conger at a private crossing in said field, and remained on the track until killed, defendant is not liable, and the jury should find for defendant.
Reversed.