77 Mo. 591 | Mo. | 1883
This action was begun before a justice-, of the peace to recover damages for the killing of plaintiff’s steer on July 8th, 1879, which, killing was alleged to-have been occasioned by the failure of the defendant to maintain good and substantial fences and cattle-guards, as-required by section 48 of the Railroad Corporation Law. After alleging generally the failure of the defendant to maintain fences and cattle-guards, the negligence of the defendant in that regard, it more particularly alleged as-follows: “ That the defects in said fences and cattle-guards had existed for a long time prior to the 8th day of July, 1879, and the defendant, its agents and servants had knowledge of said defects.” The testimony was conflicting as to whether the steer was struck on the road-crossing or inside the cattle-guards. As to the condition of the fences,, one witness testified that “ the fence had been down all summer,” and that the section boss knew it. It appears,, also, that the cattle-guards were out of order, but it does, not appear how long they had been so, or that the agents, of the defendant knew of their defective condition.
At the instance of the plaintiff, the court instructed the-jury that if the steer got upon defendant’s track, and was killed, at a point where the track passed along, through or adjoining inclosed or cultivated fields, by reason of the-failure and neglect of defendant to maintain suitable and sufficient cattle-guards, they should find for the plaintiff
At the instance of the defendant, the jury were instructed that, if plaintiff’s steer was struck and injured
The judgment will be reversed and the cause remanded.