47 Mo. App. 624 | Mo. Ct. App. | 1892
This was an action commenced, under section 2611, Revised Statutes, 1889, to recover damages for the killing of a mare. The plaintiff had judgment in the circuit court, and the defendant brings the case here by appeal.
The court instructed the jury for the plaintiff as follows: “The court instructs- the jury that the laws of the state of Missouri require all railroad companies to erect and maintain good and lawful fences along the sides of its railroads except at public crossings and incorporated towns, and where fences are required ; to also construct and maintain cattle-guards sufficient to prevent horses, cattle, mules and all other animals from getting on the railroad. And if they should find and believe from the evidence that the mare in controversy got upon the railroad at a place where the railroad company had failed to construct and maintain a sufficient cattle-guard as aforesaid, you should find for the plaintiff and assess his damages at such sum as you may believe the mare was reasonably worth at the time she was killed, not exceeding the sum of $80. The giving of this instruction constitutes the principal error assigned by the appealing defendant.
The plaintiff’s instruction, of which defendant complains, should have informed' the jury that, if defendant’s cattle-guard was not ordinarily sufficient to
For this fault we should reverse the judgment, were it not the second instruction asked by defendant contains like fault which must px’eclude it, and no error is perceived in the action of the court in permitting the plaintiff to file his replication. R. S., sec. 2211; Blondeau v. Sheridan, 81 Mo. 545.
The defendant was in no way relieved of the duties imposed by section 2611, by the adoption of article 2, chapter 5, Revised Statutes. The latter statute cuts no figure in this case. Morrow v. Railroad, 17 Mo. App. 103.
Perceiving no error in the record which would justify any interference by us with the judgment, it results that it must be affirmed.