23 Mo. App. 65 | Mo. Ct. App. | 1886
This is an action, instituted in a justice’s court, to recover double damages for the alleged killing of plaintiffs cow by defendant’s locomotive oi train of cars. The action is based on section 809, Revised Statutes.
The plaintiff recovered judgment in double the value ‘of the cow. Defendant has appealed.
At the conclusion of plaintiff’s evidence, the defendant asked for an instruction to the jury in the nature oi a demurrer to the evidence. The demurrer was based upon the ground of the failure of proof to show that, the defendant did the injury complained of.
The proof showed merely that the cow was found •dead near the railroad track, bruised and so marked as to indicate that she had been struck with great force by
We know of no case holding such proof sufficient to-uphold a verdict against a railroad company. There was sufficient evidence to have warranted the jury in-finding that the force which occasioned the injury was applied on the track, and had this been followed by further proof that defendant was, at that time, running cars-over that portion of the road, this would have been the proof of a collateral fact from which the jury might reasonably have inferred the principal fact that the injury resulted from collision with one of defendant’s passing, trains.
From aught that appears in this record, the defendant may not have been running a locomotive at all over this road, at the time in question. Section 809 contemplates an actual collision of the railroad company’s cars,. or engine, with the animal.
We have examined, carefully, this record, to discover whether there was any substantial fact in evidence-from which the jury might reasonably infer the important fact essential to support the verdict;' and are satisfied that the jury indulged in the merest assumption in finding for the plaintiff, The demurrer to the evidence-should have been sustained.
The judgment of the circuit court is reversed, and the cause is remanded.
