Jantzen v. Wabash, St. Louis & Pacific Railway Co.

83 Mo. 171 | Mo. | 1884

Martin, C.

The plaintiff obtained a judgment before a justice of the peace against the defendant under section 809, Rev. Stat. 1879, for the killing of a cow. This judgment was rendered upon a default from which the defendant appealed. The case was tried in the circuit court without jury assistance, and the plaintiff in that court obtained judgment in the sum of $35, from which the defendant appeals.

The defendant objects to the sufficiency of the statement, claiming that it fails to show that the animal came upon the track of the road at a point other than a public crossing or incorporated town or city. This objection is not well taken. The complaint recites that the cow strayed in and upon the track at a point “ one mile eastwardly from Harlem depot, where the road passes through and along uninclosed lands, where there were no fences on the sides of the road as ¡'required by law and where said defendant has not erected or maintained lawful fences on the sides of said railroad.” These allegations reasonably excluded any inference pointing to depots or incorporated limits. The inference is equally strong that the cow. was killed by reason of the defendant’s failure to fence. It is alleged that the cow strayed upon the road at a point where the road was not but should have been fenced, and was killed at that point.

It is, also, objected that the evidence fails to show that the cow entered upon the road at the point where she was killed, and where it is alleged there should have been a fence. I am unable to appreciate the point of this objection in any case where the evidence discloses a killing at a point not fenced, but required to be fenced, in the absence of any evidence of a trespass by the stock. The fact that cattle stray upon a railroad, at a crossing for instance, which the law does not require to be fenced, but are not injured there, affords no defence to any injury of them on the road beyond the limits of the crossing. How can they from the crossing reach any point on the track beyond the limits of the crossing, if the sides of the highway crossing the track are protected with lawful fences and cattle guards so as to prevent them from reaching the point of injury? Manifestly they can do this only by commission of (a trespass — a thing to be proved and not presumed.

There is no express statement in the testimony that the cow entered upon the track where she was killed. But the facts appear in evidence that her hair and blood and carcass were found on the track at a point which was not, but should have been, fenced. In the absence of evidence to the contrary the natural inference is that she entered upon the track at that point, not that she entered upon the track at a highway crossing and jumped over fences and cattle guards to get there.

Judgment affirmed.

AIL concur, except Hough, O. J., absent.