117 Mo. App. 691 | Mo. Ct. App. | 1906
(after stating the facts).
I. Instruction No. 2, given for plaintiff is erroneous for the reason it assumes the dog was on the track sometime before he was run over. That he was sitting on the track, is contradicted by the defendant’s witness, a police officer, who testified that the dog plunged under the car in front of the hind trucks; and the motorman testified that he did not see the dog at all. The instruction wholly ignores this evidence. It is also erroneous in that it does not state the proper measure of plaintiff’s damages, which is the actual value of the dog. Plaintiff’s evidence shows that he prized the dog very highly and took pleasure in its company and was proud of the smart things it would do. In view of this evidence, the jury might (under the instruction) very well have taken into consideration, in estimating the damages resulting to- plaintiff, his loss of the dog’s company and the deprivation of the amusement and pleasure the dog afforded, as well
The judgment is reversed and the cause remanded.