79 Mo. 504 | Mo. | 1883
Action for damages for killing mules in Centerview township, brought before a justice of the peace of ’Warrensburg township, which adjoins the township where the injury happened.
1.
We have no doubt that the justice had jurisdiction of the subject matter of the action. Section 2835, Revised Statutes 1879, so far as pertinent to the present inquiry, is
II.
The justice having jurisdiction over the subject matter of the action, whether the service of the summons on the defendant was sufficient or not, is immaterial. The defendant appeared before the justice and filed a general motion to set aside the judgment by default. Had the justice set aside the default it is clear no further service on the defendant would have been necessary; and all defects in the former service would have been waived.
Besides, on reaching the circuit court, to which the defendant appealed, by express provision of the statute, the cause was to be tried de novo, “ without regarding any error, defect or other imperfection in the original summons or the service thereof.” R. S. 1879, § 3052. Defendant, by bringing up the cause by appeal, dispensed with the necessity of a regular summons before the justice. Gant v. Railroad Co., ante, p. 502, and cases cited.
Moreover, after defendant’s special motion in the circuit court to dismiss the suit was denied, it appeared to the action, and introduced evidence in its defense. Jurisdiction over the defendant was, therefore, thereby acquired even
III.
The evidence adduced by plaintiff was the following :
Plaintiff testified: The Missouri Pacific Railroad runs through our farm in Centerviow and Warrensburg townships, Johnson county, Mo. I live in Warrensburg township. My mules were killed on the 17th day of December, 1879. On the 19th day of December, 1879, my attention was called to the fact that the gate was out of repair. I did not know this before. The gate is only a few rods from my house. I pass through it nearly every day, and sometimes several times in a day; passed through the day the mules were killed and the day after; did not notice anything wrong with the gate. My lot is on the south side of the railroad. We have a farm crossing there, but no cross-fences at the crossing. The hook was large and strong, and the staple was driven in the post. They were put in so that if the gate was pressed hard against the post the hook wonld come out of the staple. There were no-cattle-guards at the crossing; no cross-fences there either. The fields are on both sides of the railroad. On the evening of December 17th, 1879,1 came home and chained my mules together by the .neck as usual to keep them from jumping and turned them into my lot and closed the gate. The next morning the mules wore out of the lot. I found them both dead.on the right of way about 200 yards west of the gate, in Centerview township, both killed by defendant’s train, lying close together. The mules were about fourteen hands high and at least ten years old. Mr. Lewis and I went to bed about half past nine, and about ten o’clock I heard the engine whistle once. I think the mules were killed then. They did not ring the bell. The mules were stiff and cold next morning. I had been to town the day the mules were killed, along with J. W. Patterson and Mr. Lewis. We came home about dark that evening. I
J. W. Patterson testified: I 'was at Eitterling’s when his mules were killed by Missouri Pacific Railway 200 yards west of Eitterling’s private crossing ; came home with him the evening they were killed; saw the railroad fence gang working at the gate one or two clays before they were killed. They put the staple up two or three inches above the hook, and a push against the gate would cause the hook to come out of the staple. I have, opened the gate that way, and some pressure must have opened the gate; have opened the gate by pressing against it without taking hold of the hook. There were no cattle-guards to keep the mules off the track.
John Branham testified: I am step-father of plaintiff. We all live in one house. Am well acquainted with the gate spoken of; hauled the gate from another part of the farm to put it up at the lot crossing in place of one that
Richard Lewis testified: After the mules were killed they were laying close together at the side of the track. ‘When I saw them dead they had the appearance of being killed by the train. The chain on the mules’ necks was broken. Mules were worth $150.
Charles Burkhardt and. James Barcolo testified to the fact that if the gate was pressed against the post the hook would come out, and Barcolo testified that two days before the mules were killed he called plaintiff’s step-father’s attention to that fact (that is Branham who resided in same house with plaintiff).
Plaintiff rested here, and defendant tendered a demurrer to the evidence.
¥e think the demurrer to the evidence should have been allowed. ~We are able to discover nothing in the evidence which discloses any knowledge or notice on the part of the defendant of any defect in the fastening of the gate. Plaintiff, himself, who passed and re-passed through the gate several times a day, testifies that he knew nothing of the insufficiency of the fastening till two days after the mules were killed. Surely, if he, with all his daily opportunities to do so, did not discover any such defect, it is difficult to see how the defendant or any of its agents with their limited and casual opportunities, could have become aware of it, or be justly chargeable with negligence for failure to do so. Clardy v. Railroad Co., 73 Mo. 576; Case
In a recent case in Iowa, quite similar to the present one, where the colts were killed by a train, evidence that the gate was easily opened, and could be opened by the animals putting their heads through an opening in the gate, was held insufficient to sustain a verdict for damages. The lower court had directed a verdict for the defendant, and Rothrock, J., remarks: “Verdicts must have evidence to support them, and must not be founded upon mere theory and supposition.” Bothwell v. Railroad Co., 59 Iowa 192; s. c., 7 Am. and Eng. R. R. Cases 570.
IV
And the place where the gate was hung being a "farm crossing,” neither cattle-guards nor cross-fences were necessary, since the law does not require their construction at such points. R. S. 1879, § 809. Evidence that no such cattle guards or cross-fences were built, did not strengthen plaintiff’s case, and was erroneously admitted.
As, in our opinion, there was no evidence on which to base a recovery, the judgment will be reversed and the cause remanded.