70 Mo. App. 568 | Mo. Ct. App. | 1897
It appears from the evidence that plaintiff’s stock were in a pasture which was inclosed on the north side by the defendant’s railroad fence. It also tends to show that the plaintiff’s stock escaped from said pasture through a farm-crossing gate and from thence they entered upon the defendant’s track where they were struck and injured by one of its passing trains. It is, in effect, conceded that about the only question in the case was whether the gate and its fastenings were defective and that in consequence thereof the plaintiff’s stock escaped through the same onto defendant’s right of way and were there injured.
The statute, section 2611, requires that every railroad corporation operating a railroad in this state shall erect and maintain lawful fences on the sides of its road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands, with openings and gates therein to be hung and have latches or hooks so that they may be easily opened and shut, etc. It appears further from the evidence that up to within one or two months of the
As was said by us in the analogous case of Freet v. Railroad, 63 Mo. App. loc. cit. 554: “We think the facts and circumstances disclosed by the evidence were sufficient to justify the inference by the jury that the plaintiff’s horses escaped through the defendant’s -gate and that they would not have done so, had it not been for the failure of defendant to maintain such gate in the condition required by the statute. Indeed, there is but one conclusion to be drawn from the evidence and.that is that the gate got open for want of sufficient fastening.”
We are of the opinion the evidence was ample to justify the submission of the case to the jury and that the court did not err in its action disallowing the defendant’s several demurrers. It was perhaps not proper to permit the witnesses to testify in relation to the condition of the gate two or three days after the injury happened (Meade v. Railway, 68 Mo. App. 92), but since there was other unobjectionable evidence tending to prove the condition of the gate up to the time of the injury, we do not think this sufficient to authorize us to disturb the plaintiff’s judgment and especially so since we further think it was clearly for the right party. The case appears to have been fairly tried and the judgment will, accordingly, be affirmed.