36 Mo. 202 | Mo. | 1865
delivered the opinion of the court.
This action was brought to the May term, 1860, of the Circuit Court of Livingston county, for the recovery of damages done to the plaintiff’s property in process of the construction of the Hannibal and St. Joseph railroad through the • plaintiff’s enclosed farm, and for killing cattle in the years 1857 to 1860. ' The amended petition on which the case was tried contained five counts: the first, for damages occasioned in 1857 by the laborers on the road throwing down the fences to a greater width than the strip of land condemned for the use of the railroad, without, at the same time, fencing the railroad land on either side, whereby cattle and hogs entered into the plaintiff’s fields and destrowed his growing corn, and double damages were claimed under the act of Nov. 17, 1855, concerning Trespasses;. the second, for damages from the accumulation and flowage of water on a small part of the farm, caused by the raised embankment of the road-bed on the western side of the farm, in 1859 ; the third, for dama
The answer to the first count denied that the trespasses therein mentioned were committed by the agents, employees or servants of the corporation ; it set up as a defence to the second count, that the company had the power to construct their road, and the right of way, by their charter, and that the land taken for the use of the railroad had been duly condemned, taking into consideration the advantages and disadvantages to the land of the plaintiff, and that the compensation assessed had been paid to him; it denied the material allegations of the thi;;d and fourth counts, and to the fifth, it pleaded the right of way so acquired, and that it was the duty of the plaintiff to fence his own land, the cost thereof having been included in the compensation made; and further, that the animals were killed without any negligence, unskilfulness or misconduct on the part of the defendant.
On the trial of the cause in'November, 1864, it appeared in evidence that the laborers and workmen engaged in constructing that part of the road, and by whom the several trespasses complained of in the first four counts were committed, were employed by one Patrick Cochran, a sub-contractor under Shea, Griffin & Paris, who were sub-contractors under John Duff & Co., who were the principal contractors with the corporation for the construction of the whole road from Hamiibal to St. Joseph; that Cochran employed
Some thirteen instructions were given for the plaintiff, and ten refused for the defendant, and the jury rendered a general verdict for entire damages, the sum of $1,564 for the plaintiff. There was a motion for a new trial and a motion in arrest of judgment, and the case comes up by appeal.
It was objected by the defendant that there was a misjoinder of the several causes of action stated in the petition, for the reason that they did not all belong to one and the same
Again, the verdict is entire for one total amount of damages, without any separate finding of the issues on the several counts. On this verdict, it is impossible for the court to know how the issues were found, or on which of tlio counts the damages were assessed, or how much on each one. Such a verdict is clearly erroneous. There should have been a separate finding and a distinct assessment of the damages on each count. This is assigned as one of the grounds for the motion in arrest, and for this reason alone it should have been sustained. (Talbot v. Jones, 5 Mo. 217 ; Mooney v. Kennett, 19 Mo. 551; Fenwick v. Logan, 1 Mo. 401; Hickman v. Boyd, 1 Mo. 495; 21 Mo. 149.)
It appears that, at the close of the plaintiff’s case, the de
Defendant then asked the court to instruct the jury on each of said four counts to the effect that the plaintiff had not adduced sufficient evidence to support them, and that the jury should find for the defendant on those counts. These instructions were refused by the court for the reason (as stated in the bill of exceptions) that the defendant was not ready to close his case and submit the cause to the jury. We do not purpose, in this case, to examine into the evidence for the purpose of determining whether or not these instructions should have been given. The court below may have been justified in refusing them on the ground that there was some evidence, however slight, which was competent to go to the jury; on this we do not undertake to decide. But the reason assigned for the refusal, in the bill of exceptions, can hardly be considered sufficient. We suppose it may have been founded upon the 47th section of Article X. of the Practice Act (R. C. 1855, p. 1268), which provides that “ where the evidence is concluded, and before the case is argued or submitted to the jury, either party may move the court to give instructions on any point of law arising in the cause.” It is evident that the object of this section was to authorize the giving of written instructions, and to'require the court to give them, at the instance of either party, at the conclusion of the evidence or before submitting the cause to the jury, rather than to fix the exact order of practice; and
Another point made by the defendant is, that a part of the damages sued for was for injuries done to the realty, and that the heir only, and not the administratrix, can maintain a suit for such damages. There is obviously nothing in this objection. The whole cause of action had accrued before the death of Joseph Clark, and upon his death being suggested, his administratrix and legal representative was properly, substituted as plaintiff in the suit, under the statute relating to abatement of suits, by force of which the cause of action survives.
As the case will have to be remanded for another trial, it will not be worth while for us to review the instructions in detail; but it will be proper to indicate our opinion on the main questions involved in them for the guidance of the parties and the court below. Several of the instructions given for the plaintiff proceed upon the idea that the defendant is liable for the trespasses and injuries committed by the laborers and workmen employed in the construction of the road by the sub-contractor Patrick Cochran, while under his exclusive direction and control as his employees and servants. In this respect we think they were erroneous. This
Other instructions given for the plaintiff assumed as their basis, that the defendant was liable for the damages done to the growing crops by cattle and hogs getting into the fields
At. common law, it was the duty of every land-owner to keep his cattle within his own enclosures, and the liability of one owner to another for damages done by straying cattle, turned much upon this principle; but this rule has been considerably modified by operation of the statutes of this State. Aside from the statute, the railroad company would not be bound to fence their road against stray cattle, nor would they be liable for killing such cattle upon their tracks without proof of negligence on their part; on the contrary, the owners of cattle might be liable for damages done to the railroad, or to trains and passengers, by reason of such cattle being negligently allowed to stray upon the railroad. The statutes so far change all this as to relieve the owners from the obligation to keep their cattle within enclosures, and to make the railroad corporation liable for killing cattle upon the track, without proof of negligence on their part, unless they fence in the railroad where it runs through en
Another question presented by the instructions was, to what extent the condemnation of the land for the use of the railroad, and the compensation paid for it, taking into consideration the advantages and disadvantages to the landowner, covered and compensated the damage and injury done to the proprietor in consequence of the condemnation, and the construction of the railroad through his land, and how far the rights thus conferred upon the corporation extend. We need not undertake to answer these questions here further than a proper understanding of the law of this case nay require. There was no question but that the corporation had thus acquired the right of way, under their charter and the laws of the State, nor that they had power to construct their road through this land, and to do all things that
Now so far as the construction of the railroad through the plaintiff’s land imposed upon him the necessity of changing fences, or of building new and additional fences, in order to enclose his fields against the intrusion of cattle and animals belonging to other persons, he was bound to make those changes, and build such additional fences himself at his own expense; and all probable and necessary expense for that purpose, being a proper subject for consideration in the assessment of damages to be awarded as compensation, must be taken as having been included in the compensation paid. The corporation was not bound by any law to build fences for any such purpose; though it might well happen that if the company did fence in their road as required by statute for other purposes, by erecting fences along either side of their road, such fences when built might also serve in part, incidentally, to enclose the plaintiff’s* fields; but the only consequence that could be visited upon the company, if they failed to erect such fences, would be, that they would thereby render the corporation liable for
Again, the plaintiff complains in the second count, that a portion of his farm was injured by flowage of water occasioned by the raised embankment of the road-bed; but it is not alleged in the petition that this part of the work was constructed in a negligent, unskilful or improper manner. The answer set up as a defence to this count, that the company, by their charter, had power to construct their railroad in this manner ; had acquired the right of way by condemnation of the land, and had paid the compensation assessed, including the advantages and disadvantages to the plaintiff’s property. It did not appear that there was any natural watercourse there, which might have required a bridge or culvert to be built; but there was some evidence, that, upon complaint of the plaintiff on account of the accumulation of water on one side of the embankment, owing to the situation and configuration of the ground, the engineer had caused a pipe to be put through the embankment for the purpose of draining off the water, which did not prove effectual, and some one or two acres became too wet and marshy for cultivation. On this point the court gave the following instruction : “ That if laborers, agents or servants in the employ of the defendant, while grading said road, negligently threw up
This instruction should have been refused. The issue made on this count did not involve any question of negligence. The evidence tended to sustain the defence set up in the answer, and the finding should have been confined to the facts involved in the issue. (Alison v. Darton, 24 Mo. 848.) In the absence of any negligence, unskilfulness, or mismanagement in the construction of the embankment or the roadbed, the injury thereby done to the plaintiff’s property must be considered as the natural and necessary consequence of what the corporation had acquired the lawful right to do and such damages must be taken to have been included in the compensation assessed, or it was damnum absque injuria. The instruction was further objectionable as impliedly assuming that the corporation was liable for the negligent acts of the laborers, though employed under the sub-contractor. But the defendant cannot be held responsible for any damages occasioned by the negligence or by the trespasses of the employees and servants of the sub-contractor, whether in constructing the embankment, in taking down the plaintiff’s fences, or in depositing earth upon his land.
Not having erected the fences required by the statute, the defendant would have been clearly liable, upon a count properly framed and coming within the jurisdiction of the court, for the value of the cattle killed on the track of the railroad, without any proof of negligence. The defence set up in the answer to the fifth count was not a valid defence, and the instructions asked upon it were rightly refused.
the judgment is reversed and the cause remanded.