75 Mo. 668 | Mo. | 1882
I.
There was obvious error in refusing to submit to the jury the question whether due diligence had been used by defendant’s agents to discover defects in the fence along its line of road. After a good and substantial fence has been built by a railroad company, as in the case at bar, its sole remaining duty is to use proper diligence in keeping the fence in suitable repair; and that defendant’s agents had performed this duty is established by witnesses introduced on its behalf, and this was sufficient to base an instruction upon. Clardy v. Railroad Co., 73 Mo. 576. Any other doctrine than this, in regard to the duty of the company, would make it the insurer of fences which it is required to build and maintain.
II.
There was error also in instructing the jury to assess the damages of plaintiff at double the value of the hogs killed, and for this reason: The testimony of plaintiff’s own witness, shows that plaintiff used one of the hogs himself and gave the other to witness, and that the hogs when dead were worth $10 apiece. The benefit thus received from the hogs when killed, should have been allowed to reduce the damages claimed, in a manner proportionate to such benefit. Jackson v. Railroad Co., 74 Mo. 526. Therefore, judgment reversed and cause remanded.
