74 Mo. 526 | Mo. | 1881
This was an action to recover damages for injuries inflicted upon the plaintiff’s ox by the cars of the defendant. The testimony tended to show that the ox had a portion of its foot cut off by the ears of the defendant, and that it was appraised at the instance of the plaintiff, who said it was to be turned over to the defendant, and that he would have nothing more to do with it. The ox was never actually delivered by the plaintiff’ to the defendant, but strayed away or was stolen. No instructions were asked by the plaintiff. The following instruction was given at the request of the defendant: “ The plaintiff is only •entitled to recover damages to the amount he was injured by the defendant, and if said ox was not killed, but only injured, he should be entitled to recover damages to the extent of such injury.”
The following instructions asked by the defendant were refused: 1. “ If the plaintiff intended to surrender and deliver to the defendant the ox in controversy, after said ox was injured by the defendant, it was the duty of the plaintiff to have done so, or to have notified the defendant of the fact that he had abandoned the ox, so that tiie said ox could have been cared for by said defendant, and prevented a total loss to said defendant of said ox, and unless it shall appear from the evidence that the plaintiff did in some way deliver over to the defendant the ox in question, or unless he notified the defendant that he would abandon said ox and claim damages for the full value, then plaintiff cannot recover.”
2. “ If plaintiff failed to notify the defendant that he had abandoned the ox, and would expect damages for its full value, in consequence of which said ox was allowed
These instructions were properly refused. Even though the plaintiff did not turn the ox over to the defendant, he was entitled to recover for the injury inflicted upon it. The instruction given by the court fully covered the case, and the judgment will be affirmed.
