113 Mo. App. 1 | Mo. Ct. App. | 1905
— This suit was brought before a justice of the peace where plaintiff recovered judgment and defendant appealed to the circuit court where plaintiff again recovered and defendant appealed to this court.
The complaint alleges that defendant was the owner and operator of a railroad located through his farm in Penn township, Sullivan county, Missouri; that on
Defendant’s counsel conceded that the evidence admitted the inference that the fire was occasioned by sparks from the engine. It is, however, contended by defendant that there is nothing in the evidence showing that the justice of the peace had jurisdiction; or -that defendant owned or operated the railroad in question. It is claimed that there-was no showing that plaintiff resided in Penn township or that defendant had a station agent in the township.
Plaintiff was asked if he was the owner of the land described in the petition and he answered that he was. This was all the evidence as to plaintiff’s residence. ' But the return of the constable contains a recitation that the writ was served on defendant’s station agent in Penn township. This was conclusive evidence that the court had jurisdiction. Section 3839, Revised Statutes 1899, provides that suits of this kind may be brought in the township where the defendant may be found. It is not an action for killing or injuring animals which must be brought before a justice of the peace in which the injury happened. The law makes it the duty of the constable to make a truthful return of service, which is conclusive upon the parties to the suit. [State ex rel. Beckwith v. Finn, 100 Mo. 429; Decker v. Armstrong, 87 Mo. 316.]
The next contention of defendant is that it nowhere .appears that the engine in question was operated by the defendant’s servants. The plaintiff was asked the following question: “Does the defendant railroad company run through your farm, Mr. Kerr?” His answer was :
It is also contended that the court committed error in giving plaintiff’s first instruction. It reads: “The court instructs the jury that if they believe and find from the evidence,” etc. The objection is that it fails to place the burden of proof upon plaintiff to prove his case by a preponderance of the evidence. The instruction is good enough as it stands. The jury are instructed that they must arrive at a verdict from the evidence; that is, from all the evidence in the case. If defendant wanted the jury instructed as to the preponderance of the evidence, it ought to have asked the court to so instruct. But it failed in that respect, for which reason it is in no condition to avail itself of a technical error at most; and when it could have had, by asking, an instruction imposing the burden of proof upon plaintiff.
We find no error in the trial. Affirmed.