| Mo. Ct. App. | Jan 21, 1890
delivered the opinion of the court.
This was an action for damages' under section 809 of the Revised Statutes of 1879, for injury to plaintiff’s ox, and the plaintiff ’ s heifer, by the defendant’s locomotive 'and cars, on the defendant’s railway track at a place where the track passes along unenclosed lands and is not protected by a lawful fence. The statement recites that the ox and heifer came upon the defendant’s track, where it passes alongUnenclosed lands, and
I. The evidence shows that both of the animals were hurt at a point on the defendant’s track, where it was not enclosed by a lawful fence, and where it passed along or between unenclosed, lands. The presumption, therefore, is, in the absence of direct proof, that the animals got upon the track at a point, where the defendant'was required by law to fence its track, but did not do so. Jantzen v. Railroad, 83 Mo. 171" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/jantzen-v-wabash-st-louis--pacific-railway-co-8008015?utm_source=webapp" opinion_id="8008015">83 Mo. 171; McGuire v. Railroad, 23 Mo. App. 327.
II. The point, that there was no proof that William Young, the justice of the peace before whom the action was triéd, was a justice of Willow Springs township, or of Howell county, is disposed of by the recitals in the record, which show that he, was a justice of Willow Springs township and Howell county.
III. The objection, that there was no proof that the plaintiff was an adjoining, or next adjoining landowner to defendant’s right of way or railway track, is' disposed of by the observation that the animals were hurt where the defendant’s track passed along.unenclosed lands, and that there is no evidence that they came upon the track from any adjoining field. The rule laid down in Ferris v. Railroad, 30 Mo. App. 122" court="Mo. Ct. App." date_filed="1888-03-27" href="https://app.midpage.ai/document/ferris-v-st-louis--hannibal-railway-co-8259426?utm_source=webapp" opinion_id="8259426">30 Mo. App. 122, and cases there cited, has no application to the case, where the animal gets on .the track at a point where it runs through unenclosed lands which are not fenced, as required by law. Rozzelle v. Railroad, 79 Mo. 349" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/rozzelle-v-hannibal--st-joseph-railroad-8007572?utm_source=webapp" opinion_id="8007572">79 Mo. 349; Morris v. Railroad, 79 Mo. 367" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/morris-v-hannibal--st-joseph-railroad-8007576?utm_source=webapp" opinion_id="8007576">79 Mo. 367; Emerson v. Railroad, 35 Mo. App. 621" court="Mo. Ct. App." date_filed="1889-04-15" href="https://app.midpage.ai/document/emmerson-v-st-louis--hannibal-railway-co-6616037?utm_source=webapp" opinion_id="6616037">35 Mo. App. 621, 630.
The judgment will be accordingly affirmed.