75 Mo. App. 78 | Mo. Ct. App. | 1898
At the instance of the plaintiffs the court gave the following instruction:
instructions, “The court instructs the jury that it is the duty of the defendant to erect and maintain lawful fences on the sides of its road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed land with openings and gates therein to be hung and to have latches or hooks so that they may be easily opened and shut at all necessary farm crossings of the road, for the use of the proprietors or owners of the land adjoining such road, and until such fences and gates are erected and maintained the defendant is liable in double the amount of damages done to horses, mules, cattle and other animals, by its agents, engines or cars, escaping and entering upon said road from adjoining inclosures of landowners. And if the jury believe from a fair preponderance of the evidence that the defendant’s railroad runs through and along plaintiff’s inclosed farm lands in Greensburg town*84 ship, Knox County, Missouri, and that there was a necessary farm crossing of defendant’s railroad on said farm of plaintiffs, and on or about the 15th day of September, eighteen hundred and ninety-seven, six of plaintiff’s cows escaped and entered from their inclosures upon defendant’s road at said farm crossing on account and by reason of defendant’s failure to erect and maintain a gate at said farm crossing hung and with latch or hook so that it could be easily opened and shut, and four of plaintiffs’ said cows were by reason thereof then and there struck and killed, and two of them injured by defendant’s engine and cars on its said road, they will find for the plaintiffs the actual amount of damages they have sustained by reason of such killing and wounding of their cows as aforesaid not to exceed the sum of two hundred and twenty dollars.”
The jury found the issues for the plaintiffs and assessed the damages at the sum of $220. The court entered judgment for double the amount. The defendant has appealed.
If the plaintiffs were- entitled to have the case go to the jury, unquestionably it was fairly submitted by the foregoing instruction. Concerning the sufficiency of the appliances for fastening the gate when closed there is no complaint.- It is conceded that the gate was securely fastened late in the afternoon of the fourteenth and one of the plaintiffs gave it as his opinion that the gate could not have been opened by the action of the wind or by stock rubbing against it. The facts in evidence clearly show that some one passed through the gate during the. night and left it open. As the cattle escaped onto the track before it was possible for the servants of the defendant to be advised of the danger, the liability of the defendant (if any) must rest on the fact that the gate was not (a “statutory”
Here the evidence tended to show that the gate was constructed of plank sixteen feet long; that it was very heavy; that it had been allowed to get out of repair so that it sagged, and that for these reasons it was difficult to open and close it. Some of the witnesses said that only a man could open and close it. Others thought that a strong boy could do it. This entitled the plaintiff to the judgment of the jury as to whether the gate was constructed according to the statutory requirements. It is insisted that the instruction is erroneous in requiring the jury to determine whether the crossing was a necessary crossing, without stating to the jury the conditions which would make a crossing at that particular place necessary.