53 Mo. 525 | Mo. | 1873
delivered the opinion of the court.
This action was brought before a justice of the peace to recover damages for the killing of stock belonging to the plaintiff, by the locomotive and cars of the defendant,
The stal^unent, filed as a cause of action before the justice, charged, that the defendant was a corporation duly organized under the laws of this State, and was at the time of the wrongs complained of, on the 8th day of July, 1872, the owner and occupier of a railroad running through Hickory Grove-Township, in Warren county, Missouri; also was the owner
The justice issued a summons in the cause, on the 27th of July, 1872, requiring the defendant to appear on the 24th day of August, 1872. The summons was returned by the constable, with the following return indorsed thereon: . “The within summons was served by me, by delivering a copy to J. C. Atterbury, depot agent of the defendant, at Wrights in the county of Warren and Township .of Hickory Grove, on the 27th day of July, 1872.
Herman Hulsher, Const.”
On the 24th day of August, the day set for trial, the plaintiff appeared, but the defendant made no appearance. The justice heard the evidence of the plaintiff, and rendered a judgment in his favor for $144. On the 31st day of August, 1872, the defendant appeared, and moved the justice to set aside the judgment by default, and grant a new trial; this being overruled by the court, the defendant appealed to the Warren Circuit Court. On the 25th day of November, 1872,
This motion being overruled by the court, the defendant at the time excepted.
When the case came on to be heard, a jury was demanded. Eighteen jurors were called and examined by the parties as to their competency. The attorney for the defendant put the following question to three of the jurors, to-wit: “If the'evidence in this cause should be evenly balanced between plaintiff, an individual, and defendant, a railway corporation, which way would you incline to find ?” The jurors answered, that they would incline to find for the plaintiff. Whereupon, defendant challenged said jurors for cause. The court, before passing on said challenge, asked said jurymen, if they thought they could try the case fairly and without prejudice or bias ? They responded, that they thought they could. The court then overruled the challenge made by the defendant, and the jurors were received and sworn, to which ruling of the court the defendant excepted.
Tire evidence introduced at the trial tended to prove; that plaintiff resided in Warren county, in Elkhorn Township; that lie was the owner of twelve hogs; that eight of them were killed, six of which were of the Chester White breed,
The defendant introduced evidence which tended to prove; that the hogs killed were not worth more than from twenty to twenty-five dollars; that the water gap was difficult to keep in a condition to keep hogs of the size of those killed from getting through ; that it always had to be repaired after-a rain; the section foreman had driven the hogs from the road at one time before they were killed, traveled the road almost daily, but had not observed that the water gap was out of repair at the time the hogs were killed.
At the close of the evidence, the court instructed the jur^ as follows:
*532 “To entitle the plaintiff to recover, it must be satisfactorily shown to the jury from the evidence, that the hogs, on account of which this suit is brought, were struck, killed, or injured by defendant’s railroad machinery on that part of the track passing through inclosed fields, and not at a public or private crossing, and that the hogs got on the track by reason of defective fencing on the part of defendant. The measure of damages, in the event of recovery, is actual market value of the hogs killed, including any depreciation in the market value on account of injuries inflicted by defendant’s locomotive and machinery.”
To the giving of which instruction the defendant at the time excepted.
The defendant then asked the court to instruct the jury,
First — “ That upon the evidence in this case the plaintiff cannot recover.”
Second — ‘‘‘The court instructs the jury, that before the plaintiff can recover in his action herein, he must show that-defendant is a corporation organized and doing business under the laws of the State of Missouri.”
Third — “The court instructs the jury, that under the statement in this case before the plaintiff can recover, they must believe from the evidence, that the hogs strayed upon the ■.track of defendant at a point where the defendant was bound ■oy law to fenee its track, and if they further believe from the evidence, that the hogs strayed upon the railroad track of defendant from timber land, then, before they can find for plaintiff, they must believe from the evidence, that the killing and crippling were occasioned by the negligence of defendant in operating its locomotives and cars on its said road.”
The court gave the instruction numbered two, asked for by the defendant, and refused those numbered one and three; to the refusal of the court to give the instructions numbered one and three the defendant excepted.
The jury found a verdict in favor of the plaintiff for fifty , dollars.
The court sustained the said motion, and rendered judgment in favor of the plaintiff for the sum of one hundred dollars, with costs, &c.
The defendant in due time filed its motion for a new trial, setting forth as grounds therefor all- of the opinions of the court excepted to, as well as that the court had improperly rendered a judgment for double damages, and that the verdict of the jury was against the evidence, and against the law as given them by the court.
This motion being overruled by the court, the defendant again excepted.
The defendant then filed a motion in arrest of the judgment ; because the justice of the peace had no jurisdiction of the cause or of the person osf defendant; because-the statement of plaintiff’s cause of action was insufficient; because the suit could not properly be brought in the name of the plaintiff; and because the judgment and proceedings are otherwise erroneous.
This motion was also overruled by the court, and the defendant again excepted and appealed to this court.
It is first insisted by the defendant, as a ground for the reversal of the judgment, that the justice of the peace had no jurisdiction over the subject of the action, and that if any such jurisdiction did exist, that then the suit under the 42d section of the statute concerning Railroad Corporations (1 W. S., 310) should have been brought in the name of the State, and that no suit could be maintained under the 43d section of the same act in favor of or in the name of the party injured. By the fifth clause of the 3d section of the 1st article of the statute concerning Justices’ Courts (2 W. S., 808) it is provided, that “ in all actions against any railroad company in this State to recover damages for the killing, crippling or injuring of horses, mules, cattle or other animals, within their
By the 36th section of said chapter, all baggage of passengers with a handle or loop is required to be checked, and a duplicate given to the passenger or person delivering the baggage, “and if such check be refused on demand, the corporation 'shall pay to such passenger the sum of ten dollars to be recovered in a civil action ; and further, no fare or toll shall be collected or received from such passenger, and if such passenger shall have paid his fare, the same shall be refunded ; and on producing such check, or, if he have no cheek, on demanding his baggage, if it be not delivered to him he shall recover the value thereof.” I suppose it would hardly be
Again, by the 38th section of the same act a penalty of twenty dollars is inflicted against a railroad company for a failure to ring the bell as therein provided, and it is therein provided, that it shall he sued for by the Circuit Attorney of the proper circuit within ten days, one-half to go to the County and tlie other half to the informer. It is not provided in this section in whose name the suit shall be brought; the penalty is for the informer and the County; the suit is to he brought by the Circuit Attorney, and it is natural that a provision should be made for bringing such suit in the name of the State ; and there are a number of other penalties provided for in the act, which are not provided for the benefit of a person who is aggrieved ; in all such cases the suits should be brought in the name of the State; but where an individual is injured or damaged by the act of the road, and a compensation is provided for the injury, although the compensation is in the nature of a penalty, yet such cases are not within the contemplation of the 42d section providing for the collection of penalties in the name of the State, and we further think, that if the statute should even be so construed as to authorize the suit in such case to .he brought in the
This language is broad enough to include all such actions, whether brought under the one statute or the other.
The next objection made by the defendant to the action of the Circuit Court is, that the court overruled its challenge for cause to three of the jurors who tried the cause; this is also assigned as error by the defendant. The defendant, when the jury was being impaneled, asked three of the jurors, that
The learned judge, in delivering the opinion of the court in that case, says, that “when a juror avows that one litigant should have any other than the advantage which the law and evidence give him, he declares his incompetency to decide the case. ITe thereby proclaims, that he is so far partial as to be unable to do justice between litigants, or that he is so far uninformed, and his sense of right is so blunt, that he cannot perceive justice or, perceiving it, is unwilling to be governed by it.”
This language may be proper in the case before the judge who used it, but we think that it is no evidence of stupidity or dishonesty in a juror in a ease where the evidence is exactly balanced to be ignorant of the fact, that in such case the
In this case the jurors answered the judge, that they could decide the case without partiality or bias; and to take their answers all together it is only shown, that they were not lawyers ; in fact, it is generally understood, that jurors are not informed in reference to where the preponderance of evideuce is required, and therefore it is usual for the attorneys in a case to aslt the court to inform the jury by an instruction upon whom the burthen rests to prove the different issues in the case. The court so instructed the jury in this case, and we do not think that it was error in the court to accept the jurors objected to.
We think, that the service of the summons by the constable in this case was in substantial conformity to the statute, and that the defendant was*properly in court.
•The only additional points relied on by the defendant in this case grow out of the action of the court in giving and refusing instructions as to the law of the case. The defendant moved the court to instruct the jury, that upon the evideuce in the case the plaintiff could not recover. The objection of the defendant to the instruction given by the court, and the grounds upon which the defendant asked the instruction before stated, seem to be mainly predicated on the fact, that there was no evidence on the part of the plaintiff to prove, that the defendant was a corporation. This was not necessary in this case ; the defendant had appeared and defended as a corporation, using the very name in which it was sued ; had in the progress of the case executed bonds filed in the cause authenticated by its corporate seal, and, in every
It is next complained by the defendant, that the court erred in refusing the third instruction asked for by defendant. This instruction tells the jury, that they must find, the “hogs strayed on the road at a point where the defendant was ■bound by law to fence its track.” This was a question of law, which ought not to have been submitted to the jury without also telling them at what points the track was required to be fenced. The court, in the instruction given to the jury, had fairly instructed the jury on that subject, and properly refused the instruction as asked by the defendant. The instruction asked by the defendant also told the jury, that if the hogs entered on the railroad from timbered land, then in order to. a recovery on the part of the plaintiff, the killing of the hogs must be shown to have been caused by the negligence of the defendant in conducting its trains. The statute requiring railroads to be fenced does not confine or limit the parts to be fenced to prairie or untimbered land, but the language used is, “along or adjoining inclosed or cultivated fields or uninclosed prairie lands, &c.” The evidence in this case shows, that the land, from 'which the hogs escaped on to the road, was inclosed pasture lands, and this was sufficient.
This suit was brought and tried under the 43d section of the Railroad law (W. S,, 310), and the instruction given by the court fairly presented the law of the case to the jury. ' The cause of action was substantially good, and the court did
The judgment will be affirmed;