111 Mo. App. 140 | Mo. Ct. App. | 1905
Action on the statute to recover double the value of two mules hilled by a locomotive of the defendant company. The complaint, among other things, avers as follows:
*142 “That said mules came upon the track of said railroad and were killed in said township at a point Avhere said railroad passes through and along inclosed and cultivated fields and uninclosed lands and where defendant was required by law to erect and maintain lawful fences on the side of its said road with openings and gates therein, and where there was not any crossing of said road by a public highway and not within the limits of any incorporated city, town or village; that defendant on said 8th day of August, 1903, and for a long time prior thereto failed and neglected to keep and maintain along the sides of its said railroad at the point where said mules got upon the track as aforesaid and were killed, lawful fences with openings and gates therein hung and having latches or hooks so that the same might be easily opened and shut at necessary farm crossings of the road, and that by reason of said neglect and failure on the part of the defendant, the plaintiff’s said mules got upon said railroad track and were struck and killed and the killing of said mules was occasioned then and there by reason of the neglect and failure aforesaid on the part of the defendant.”
The railroad company was shown by the testimony of the plaintiff himself to have a good fence at the place where the mules entered the right of way; but there was a gate in the fence there and some testimony tended to prove the gate had a fastening which was out of order, and other testimony to prove the gate was left open for long periods. That the fastening worked well and was in perfect repair was also supported by testimony. One witness swore he saw the gate open on Saturday before the mules were killed on Sunday and again on Sunday during the day; and on Sunday night he found the bodies of the mules near the track. Plaintiff’s land did not adjoin the right of way but was separated from it by a neighbor’s farm. Several lines of fence ran between the inclosure in which he kept his mules and the rail
It will be observed from the quoted portion of the complaint, that the plaintiff did not count on the negligence of the defendant in leaving the gate open; but on its failure to keep and maintain lawful fences and gates as required by the statutes. Most of the evidence went to show the mules got on the track through an open gate, and that the gate being open was the proximate cause of the accident. No objection was interposed to the reception of this evidence, and the defendant met it with counter evidence to show the railway company was careful to keep the gate closed. The court instructed the jury that if they believed the gate in question was open and the mules went through it, and that it had been standing open for such a length of time that the defendant knew or ought to have known the fact, and have closed it before the mules went through, then the failure to close the gate was negligence on the part of the defendant and the verdict should be for the plaintiff. This instruction was given against the defendant’s objection. We grant that negligently letting a gate in a right of way fence remain open constitutes a violation of the statute requiring lawful fences to be maintained, and entitles a party whose animal is killed in consequence of having passed through the open gate to double damages. But the question presented in this case is one of pleading and is as to