25 Mo. App. 110 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This was an action commenced before a justice of the peace to recover double damages, under section 809
The evidence, as recited in the bill of exceptions, tended to establish the following facts: That the bull sued for was the property of the plaintiff, of the value ■of twelve dollars, and was killed in Williams township, Wayne county, in January, 1885, by a train of cars on the defendant’s road, where the law requires the railroad company to build fences ; that fences had been built by the defendant, but they were in bad condition and down in several places, and had been in that condition for a long time, and the defendant had notice of such condition; that said bull came onto said. railroad from a pasture belonging to John Carpenter, the plaintiff’s brother, and through a defect in the railroad fence running along the side of said pasture ; that the other three sides of said pasture were surrounded by a good fence sufficient to turn stock, said fence being in some places about six feet high and connecting on to the railroad fence. This was all the evidence in the case.
The defendant requested the following instruction, which the court refused:
“ The court declares it to be the law of this case, that the duty to fence its road by a railroad company is for the benefit of the adjacent land owner, and if it appear from the evidence in this case that the plaintiff’s bull herein sued for strayed upon the defendant’s road through a defect in the railroad fence, along the side of the pasture of Mr. John Carpenter, and that the other sides of said pasture were surrounded by a good . legal fence, sufficient to turn stock, that the plaintiff can not recover in this action.”
The settled construction of the statute is, that the
Moreover, as the burden ■ of proof was upon the plaintiff to show that the-field of John Carpenter, from which the plaintiff ’ s animal strayed upon the track of the defendant, was not anywhere surrounded by a lawful fence, on its sides not contiguous to the railroad, in the absence of any evidence on the subject, the court would have been bound to find, for the purposes of the case, that it was so surrounded by such a fence. In the state of the evidence, leaving out of view the question whether, had the burden been on the defendant, the-above recitals would have shown a lawful fence on the-
The judgment is accordingly reversed, and the cause remanded,