89 Mo. App. 36 | Mo. Ct. App. | 1901
This is an action which was based on section 1105, Revised Statutes 1899, and brought before a justice of the peace to recover damages under that section for injuries to five head of steers, the property of the plaintiff. The plaintiff had judgment in the circuit court, where the cause had been removed by defendant’s appeal. One of the grounds upon which the defendant seeks to reverse the judgment is that the plaintiff’s first instruction is erroneous. It undertook to outline to the jury the duty required of the defendant by said section 1105, but failed to do so in that it told the jury that defendant was required to erect and maintain lawful fences along the sides of its railroad where it passes through, along or adjoins inclosed or cultivated fields or uninclosed lands “sufficient to prevent horses, cattle, mules and other animals from getting on its railroadf’ etc. The duty imposed by the italicized words of this
This instruction is further erroneous in declaring that if the defendant had notice of the defective condition of the fence, there was liability without reference to whether there was- any sufficient time in which to make the repairs intervening between the receipt of the notice and the injury. Young v. Railway, 82 Mo. 427; Clardy v. Railway, 73 Mo. 575.
The plaintiff’s second instruction declared in substance that, even though there was no evidence tending to show actual knowledge of the collision nor any eyewitness thereto, yet, it— the jury — was authorized to infer a collision from the facts and circumstances disclosed by the evidence. In view of the evidence we think this instruction open to no serious objection.
The plaintiff’s third instruction was to the effect that, if the plaintiff’s steers were injured in a collision with defend
“It is the duty of a party to protect himself from the injurious consequences of the wrongful act of another if he can do so by ordinary effort and care and at a moderate and reasonable expense, and for such reasonable exertion and expense in that behalf expended he may charge the wrongdoer; and where by the use of such means he may limit and prevent further loss he can only recover such loss as could thus be prevented.” If a person, chooses to make his loss greater than it need reasonably have been, he can not thereby make his claim on the wrongdoer any greater. 3 Parsons, 178; Field on Dam., 19.
The measure of damages in ordinary cases, where the property is not entirely lost or destroyed, or practically or sub
The only evidence adduced as to the value of the steers just after the injury was that they were of no value; but this does not seem to be true, for it was shown that four of the five — at an expense of seven dollars and fifty cents per head for care bestowed in endeavoring to restore them — were made to be worth one hundred and seven dollars. Now, it is easy enough to see that had the steers been shown to have been of any specified value just after the injury, the damages would have been the difference between that value and the seven dollars and fifty cents per head for the care bestowed in the endeavor to restore them, and their value just before the injury. Here, as already stated, it is not disclosed by the evidence that the steers were
The less the value of the cattle were shown to be immediately after the injury the greater of course would be the plaintiff’s damages, since, under the law, his damages would be the difference in the value thereof just before and just after the injury. Evidence of the kind referred to is too remote and uncertain to prove the value immediately after the injury. If the amount for which the cattle sold three months after the injury could be shown in evidence to prove their value just after the injury, why may not the amount for which they would sell six or twelve months thereafter be shown to prove such value as well ? The rule enunciated by the instruction finds no sufficient support in the evidence to justify the giving of it. It is plain to be seen that the four steers that were injured and did not die were of some value just after the injury. If the plaintiff had shown that value and that of the reasonable care and attention required in curing them, his prima facie case would have been established and his instruction applicable. No doubt the value
No serious objection is seen as to the plaintiff’s fifth instruction.
It follows that, on account of the errors to which we have referred, the judgment will be reversed and the cause remanded.