39 Mo. App. 382 | Mo. Ct. App. | 1890
Lead Opinion
delivered the opinion of the court in the first of these causes.
This action was commenced before a justice of the peace to recover double damages under section 809, Revised Statutes, 1879, from the Kansas City, Springfield and Memphis Railroad Company, ' for killing plaintiff’s cow. The plaintiff obtained a judgment before the justice, and the company appealed the case to the circuit court. During the pendency of the appeal in the circuit court the Kansas City, Springfield and Memphis Railroad Company, the original defendant, and another corporation known as the Kansas City, Fort Scott and Springfield Railroad Company consolidated and formed the Kansas City, Fort Scott and
I. In the first place the defendant assails the judgment and insists that it cannot be sustained for two. reasons: (1) There was no competent proof of the fact of consolidation. (2) The action of the circuit court in permitting the plaintiff to take judgment against defendant without additional notice was unwarranted.
The first objection is clearly untenable for the reason that the defendant’s attorney testified for plaintiff, without objection, that the consolidation of the old companies, by which the defendant corporation was formed, was consummated on the twenty-sixth day of April, 1888. This was tantamount to an admission of the fact by defendant. If it was intended to place upon plaintiff the burden of proving this by primary evidence, an objection to the secondary evidence should have been interposed. If such objection had been made the plaintiff might have been able to obviate the objection by the production of the primary evidence. Proof of the fact of consolidation was sufficient to fix the liability of the defendant for the obligation (if any) of the old company for killing the plaintiff’s cow. No evidence as to the terms of the contract of consolidation was necessary, as the statute expressly provides that the consolidated company shall be subject to all the obligations and liabilities to the state, or otherwise, which belonged to or rested upon either of the companies making such consolidation.
II. The defendant iñvokes the doctrine laid down by this court in the case of Ferris v. Railroad, 30 Mo. App. 122, and contends that there was no proof that the plaintiff was an adjoining or next-adjoining landowner to the defendant’s railroad track, where it is alleged the animal strayed upon the track. The petition states, and the evidence shows, that the animal came on the defendant’s railroad track or right of way where it passed through unenclosed, lands. The doctrine of the Ferris case cannot be made to apply, when the animal got upon the track where the railroad passes through unenclosed lands. , The obligation imposed by statute upon railroad companies to fence
III. The defendant contends that there should be proof other than that furnished by the original papers, and the transcript, that W. W. Tucker was a justice of the peace of Hutton Valley township in Howell county. This position is untenable. The transcript of the justice, and all original papers sent to the circuit court, show that the proceedings were had before W. W. Tucker, justice of the peace of Hutton Valley township in Howell county. This was sufficient. Duke v. Railroad, ante, p. 105 ; Hansberger v. Railroad, 43 Mo. 196 ; Fields v. Railroad, 80 Mo. 203.
And lastly the defendant’s counsel insists that there was no proof that the plaintiff’s cow strayed upon the defendant’s railroad track where the company was by law required to fence.
The testimony tended to prove that the cow was found dead, by the railroad tracks where the defendant’s road passes through unenclosed lands in Hutton Valley township; that the cow was mashed up and had two of her legs broken; that the road was not fenced at the place where the cow was found dead; and that there was no crossing at or near the place. The law presumes, in the absence of proof to the contrary, that the animal got on the track of defendant’s road where it was killed. Lantz v. Railroad, 54 Mo. 228; Walther v. Railroad, 55 Mo. 271. The circumstances disclosed by the evidence tended to show that the cow was killed by an actual collision with the cars or locomotives running-on the defendant’s road, and the injuries inflicted indicated that the animal was killed at or very near the place where she was found dead. At this point the road was not fenced, and, under the repeated
The judgment of the circuit court will be affirmed with ten per cent, damages.
Concurrence Opinion
delivered the following concurring opinion:
I concur on all points of the foregoing opinion, except upon the intimation. that an objection to the evidence offered to prove the consolidation, on the ground of its being secondary, would have been tenable, if made. Upon that point I do not concur in the language of the opinion.
delivered the following opinion of the court in the cause No. 4431.
For the reasons given by us in our opinion in case No. 4430, between the same parties, the judgment of the circuit court in this case will be affirmed with ten per cent, damages.