20 Mo. App. 216 | Mo. Ct. App. | 1886
This is an action to recover damages against the defendant, a railroad corporation, for an injury to a steer, the property of plaintiff. The action is founded on section 809,' Revised Statutes. The injury is alleged to have resulted from defendant’s failure and neglect to fence its road where the same runs through uninclosed land. .The case was tried before the court sitting as a jury. Judgment for plaintiff. Defendant brings the case here by appeal.
Even, therefore, if the statute admitted of the construction contended for by appellant, which we do not now concede, the proof fails to show that the defendant’s' road was inclosed, or that the land between it and the other road was inclosed.
II. The remaining errors assigned by appellant turn principally upon the evidence. Assuming that the fence-built by the Hannibal road should be treated as if built by itself, defendant contends that the evidence wholly fails to show that the steer entered upon the track of defendant through any defect in either fence. The plaintiff lived on.the west side of the Hannibal road, only a short distance from it, and the point where his steer was injured. The uncontradicted evidence is, that near his premises the fence, in two or three places, built by the Hannibal road, was in such wretched condition that for some time prior and up to the time of the injury, cattle
Counsel for defendant assert that there was a gate in this fence, about three hundred yards north of the point where the steer was found, and that it was frequently left open by passers, and that the steer may have escaped through it onto the track. But there is no evidence in the record that this gate was left open. The evidence related only to a gate in the defendant’s fence on the east side. The only witness that spoke to this issue was defendant’s trackman, who stated that he knew nothing about the fence on the Hannibal side of the road, as he did not regard that as pertaining to his duties as track-man for defendant. If, however, we accept defendant’s .contention as correct, that the steer did not escape through the fence on the west side, the conclusion would reasonably follow that it must have entered either through or over defendant’s fence. To do so the steer would have passed over the public road crossing on the
We are referred to several adjudications in other ■states touching similar state of facts. But it will be found, that while the principles of law governing such ■ questions may be quite universal, each case is made to depend so much on its own peculiar facts that the conclusion reached by one court on the special facts before it would be a very unsafe criterion in another case presenting other controlling incidents and facts. The observations made by the judge delivering the opinion in one case may be wholly inapplicable where an important fact appears in another case not found in the first.
III. There was abundant evidence in this case from which the trial judge was warranted in finding that the collision occurred on defendant’s track.
IY. As applied to the facts of this case, the court properly rejected the declarations of law asked by defendant.
The judgment is affirmed.