177 Mo. App. 346 | Mo. Ct. App. | 1914
This is an action for double damages under section 3145, Revised Statutes 1909, appealed by defendant from a judgment recovered by plaintiff in the circuit court.
The evidence of plaintiff shows that his cow met a violent death on defendant’s right of way at a place in Blue township, Jackson county, where the statute required defendant to maintain lawful fences and cattle guards, hut it fails completely to show that her death was caused by a collision between her and an engine or car on the railroad. The rule is well settled that a plaintiff cannot maintain an action for double damages under section 3145, unless the injury was the result of an actual collision, occasioned by a failure to fence as required by the statute and the burden is on the plaintiff in such cases to plead and prove this constitutive fact. [Lafferty v. Railroad, 44 Mo. 291; Seibert v. Railroad, 72 Mo. 565; Foster v. Railroad, 90 Mo. 116; Perkins v. Railroad, 103 Mo. 52; Shaw v. Railroad, 110 Mo. App. 561; Hires v. Railroad, 157 Mo. App. 46.]
The cow was found in a hole near the track, lying on her hack with her neck twisted so that her head was under her body, and with her hind feet protruding. The hole was about three feet deep and when found the body was so bloated that it fitted tightly in the hole and resisted the efforts of the section men to remove it. There were no broken hones, no abrasions of the hide, no hoofprints or other marks around the hole, or on or near the railroad track. The weeds were not disturbed, nor were there any signs on the banks of the depression to indicate the cause of the fall of the cow. Plaintiff filed no brief but we infer that