80 Mo. 203 | Mo. | 1883
This suit originated before a justice'of the peace, and upon a trial of the same in the circuit court, upon, defendant’s appeal, judgment.was rendered in favor of plaintiff, from which defendant has appealed. The sufficiency of plaintiff’s statement of his cause of action and the action of the court in giving and refusing instructions, are questioned by the appeal.
So much of the statement as is necessary to an intelligent disposition of the question raised, is as follows:
“ Plaintiff says that on or about the 17th day of December, 1880, at the county of Daviess in the State of Missouri, and in Denton township, in said county, where defendant’s road runs and passes through and along inclosed and cultivated fields, and where defendant was bound by the statute of Missouri to make, construct and maintain lawful fences and cattle-guards on and along the sides of its road, and where defendant had wholly failed to make, construct and maintain any such fences or cattle-guards, the defendant did, by its agents, cars and locomotives, on its said road and at the point aforesaid * * wound and kill one steer, the property of plaintiff, of the value of $30, and did strike, wound and bruise one steer, of the value of $30, injuring him to the amount of $20 * * ; and plaintiff says the injuries aforesaid to his cattle were done and the damage aforesaid arose solely on account of the defendant’s failure to make, construct and maintain lawful fences and cattle-guards, as required of it by law, as aforesaid, in and along the inclosed field aforesaid on the sides of its road.” The statement concluded by asking judgment for double damages under the statute.
It is urged by counsel that the statement is fatally defective because it does not show that the suit was brought before a iusti.ee of the peace of the town- " A . ship where the stock was injured. If in determining this question we were confined to the state
It is also urged that the statement is insufficient because it does not aver that the stock got on the track.of the road at a point where it was not fenced as required by law. While this averment is not made in the above form, we think it is in effect made by the allegation that the damages were “ occasioned solely on account of the defendant’s failure to maintain fences,” as charged in the statement. It excludes every other implication than the one that the cattle got on the track where it was not fenced. Edwards v. Railroad Co., 74 Mo. 117; Bowen v. Railroad Co., 75 Mo. 426.
It is also objected that the court erred in refusing to give the instruction that under the pleadings and evidence plaintiff could not recover, and that it also x . . ,. « .. . . erred m giving the following: “ if the jury believe from the evidence that on or about the 17th day of December, 1881, at Benton township, Daviess county, Missouri, and at a point in said township where the defendant’s railroad runs through and passes along inclosed and culti-yated fields, and at a point where defendant had failed and
The evidence is not preserved in the bill of exceptions. The only reference to it is that “ plaintiff on the trial introduced evidence tending to prove the allegations contained in his statement,” and that defendant introduced no evidence. And we are, therefore, justified in presuming that the evidence was sufficient to j ustify the court in refusing to take the case from the jury.
The instruction given by the court, while it is subject to the criticism made, that it omits to tell the j.ury that they must believe that the stock got on the track where it was not fenced, yet still if the undisputed evidence in the case proved the allegation in the petition, that the failure to fence was the sole cause of the injury and damage, the omission to state such a fact and the assumption by the court that the fact was proved, is not reversible error. "When testimony is clear and conclusive, an instruction may assume the truth of the fact sworn to, and it will not be reversible error. Barr v. Armstrong, 56 Mo. 577; Caldwell v. Stephens, 57 Mo. 589.
Judgment affirmed.