157 Mo. App. 46 | Mo. Ct. App. | 1911
— This is a suit for double damage's alleged to have accrued to plaintiff through defendant’s negligence in failing to construct and maintain fences along its railroad, as required by the statute. Plaintiff recovered and defendant prosecutes the appeal.
■It is conceded defendant’s railroad was unfenced at the point in question and that the locus in quo is outside of any city, town or village, where the statute enjoined the duty of fencing, and is not within the switch limits of any station. The controversy in the case relates alone as to whether or not the proof tends to show defendant’s train actually collided with and occasioned the death of plaintiff’s cow. Plaintiff resides in • the little town of Pascóla in Pemiscot county and owned the cow which it is alleged came to its death through defendant’s negligence. Plaintiff’s testimony goes to the effect that she milked the cow about seven o’clock on the morning of the day it was found dead and turned it out on the’range. She noticed the cow wander eastward along defendant’s track and some time before noon learned through a neighbor that it was dead. She immediately repaired to the place and found the cow lying dead about seventeen yards south of the railroad track. Plaintiff sáys she looked at the animal and returned to her home, but made no investigation whatever as to whether or not the cow bad.,been upon the railroad track. She observed no cow tracks or indication of a collision with a train, and did not attempt to speak upon the subject of the dead cow itself showing evidence of violence or a collision. Indeed, so far as plaintiff’s evidence is concerned, it is
Defendant’s theory of the case is, that the cow died from the “hollow tail” and not from a collision with its train. No witness in the case suggests there was any indication about the dead cow tending to show it had-been run upon or collided with by a train; on the contrary, a farmer who was plowing along adjacent to the track said he saw the cow down as though she were sick and went out and examined her before she died. Upon approaching, he thought the animal had been struck by the train but upon looking it over and making an examination along the track found no sign whatever to that effect. He said, too', he discovered she was sick, and finding that her tail had been split, concluded she was dying from the disease known as “hollow tail.” Defendant’s section foreman, who buried the cow in the middle of the afternoon, said he found no traces of a collision about her nor did he discover any signs indicating cattle had been upon the track or that a collision had occurred thereabout. It was in evidence defendant’s passenger train passed along the road about an hour and a half after the cow was turned out in the morning, but no one suggests that it sounded a stock alarm as though cattle were upon the track, nor that the cow was seen upon or about the right of way at that time. One witness for plaintiff visited the scene on’ the morning, succeeding that on which .the cow was found dead, fully twenty-four hours after the event, and. says that upon investigation he discovered indications on the track as though a collision with a member of the “cow family” had occurred, but. he did not see plaintiff’s cow, for she had
“I walked east along the track . . . where an animal had been buried on the south side of the track about five hundred feet east of. the switch and on the south side of the embankment, there was a little em- ' bankment four or five feet, some cow — cow family had either been knocked from the track or—
' • “ Mr. Whybark: Object to that because it is more than twenty-four hours afterwards; the place .hasn’t •been identified.
“Court: That is a circumstance.”
This is all that appears in the evidence in chief from this witness but the two last questions propounded to him on cross-examination and his answers thereto touch upon the matter again as follows:
“Mr. Whybark: You couldn’t tell what animal made these tracks excepting they were cow tracks A. No, sir, some cow animal did it.
“Q. It might have been a steer? A. Yes, sir,' it might have been a bull.”
This meager scrap is all of the evidence there is in the record pertaining to indications of an animal being upon the railroad track and there is nothing whatever in this to suggest a collision with plaintiff’s cow'. Besides 'it appearing this evidence” relates alone to observations made a full day after plaintiff’s cow came to her death, there is nothing in it to suggest that plaintiff’s' cow was 'the object of a collision on the track, for "the country'was ■'open and the railroad unfenced and it may be some othet animal was collided with, about which nothing appears in the record. This is not to be inferred, of course, but the point is, no inference of a collision with pláintiff’s cow appears, for the proof does not suggest a collision
The suit proceeds under the statute (sec. 3145, R. S> 1909), which requires railroads to fence the tracks and authorizes a recovery of double damages for cattle killed on account of the failure to do so. The statute is penal and its. provisions are not to be extended but strictly construed. Under this section, it has ever been the rule of decision that no right of action appears unless the evidence tends to prove an áctual and direct collision with the animal. [Lafferty v. H. & St. J. R. Co., 44 Mo. 291; Seibert v. M. K. & T. R. Co., 72 Mo. 565; Hesse v. St. Louis, I. M. etc. R. Co., 36 Mo. App. 163.] Of course, the burden is on plaintiff to make a prima facie Case. Until then there is no duty devolved upon defendant with respect to the matter of proof. Though defendant introduced proof in this instance, it in no matter aided plaintiff’s case, but, on the contrary, tended to show not only that there were no indications of a collision upon the cow itself, but no indications thereof on the track immediately or for several hours after the cow was found dead on the day the collision is said to have occurred. But, in determining the matter, the proof in favor of defendant will not be considered, as it in no respect aided plaintiff’s case. It is true the fact of the collision with the animal may be proved as well by circumstances appearing at the time and shortly thereafter as by .direct and positive evidence. [Blewett v. Wyandotte, etc., R. Co., 72 Mo. 583]; but such circumstances must be sufficient to afford a reasonable inference tending to prove an actual and direct collision occurred with'the dead or injured animal. A mere surmise or conjecture is no more allowed in such cases than in others. [Hesse v. St. Louis, I. M. etc., R. Co., 36 Mo. App. 163.] Indeed,
The judgment should be reversed and the cause remanded. It is so ordered.