82 Mo. 237 | Mo. | 1884
This is an action instituted in the common-pleas court of Moberly, Randolph county, to recover •damages for the killing by defendant, a railroad corporation, of plaintiffs colt. The action is based on section 809 Re-wised Statutes. The petition is in proper form and alleges
The plaintiff, to sustain the issues on his part, testified “ that he was the owner of the animal sued for in the petition, and that at the time of the killing she was of the value of $60, and that the said animal got upon the track of defendant at a point where the same was not fenced and not at a public road crossing. Found the mare or colt lying-at one end of a trestle work on defendants’ road, down in a branch. Don’t know how she got there or how she ■was hurt.”
W. J. Shause, witness for plaintiff, testified: “ That he saw the animal lying over in the branch at one end of the trestle work the morning after she was thrown there (or) had fallen there. Could see her tracks on defendants’ road going in the direction of the trestle. She seemed to check up just as she reached the trestle work, and her hind feet seemed to have gone between the ties just at the end ■of the trestle work on the opposite end from where she was lying when I found her. The trestle was about twenty-six -or twenty-seven feet long. I saw hair on the ends of the screws joining the rails together on the end of the trestle work to which she must have first come, but no other marks on the trestle until on the opposite end of the trestle, where she seemed to jump off' or was thrown off' against ■some willow stubs, on which there was hair. There were no tracks of the animal on the side of the trestle where we found the animal. The first and only evidence of her ■striking was on the stubs where she seemed to have lighted on her side, on the south side of the railroad track outside. The animal was not dead when I first saw her. She had no bones broken. On the inside of her hind leg, above the second joint, or hock, the hair was scraped off about eight inches, as though something had struck her between the hind legs — a cow catcher or something of that sort. Appraised the animal at $60.”
¥m. Guin, another witness for plaintiff, testified to
The defendants, to sustain the issues on their part, offered James Russell, who testified: “That he saw the animal sued for by plaintiff' at the time she was hurt. He was an engineer on defendants’ road running an engine. The animal, when he first saw her, was running in front of an engine that was in his charge at the time, and when she came to the trestle referred to, ran on to it, and j umped or ran across it diagonally and jumped off' down into the branch. The engine was at no time nearer than fifty feet to the animal, and she was not struck or touched by the engine or cars.”
The defendant at the conclusion of the evidence asked the court to declare : “ That under the pleadings and evidence the plaiutift' is not entitled to recover.” The court refused this instruction and found the issues for the plaintiff and entered up judgment on motion of plaintiff for double the ascertained value of the colt. Defendant after ineffectual motions for new trial, and in arrest has brought the case here on appeal.
I. The first objection urged by defendant against the verdict and judgment in this case is, that the petition and evidence do not negative the fact that the point of injury and that at which the colt entered upon the railroad track may have been within the limits of an incorporated town or city.. The petition distinctly avers that the said points are where the railroad “passes through, along or adjoining inclosed or cultivated fields or uninelosed lands,” and that the action is brought under section 809, etc. This it has been repeatedly held is sufficient. If in fact the point was where the defendant was under no legal obligation to so fence, after the plaintiff has made the proof shown in this record, the defendant should make proof of the exculpatory fact. Farrell v. Union Trust Co., 77 Mo. 475; Jackson v. St. L., I. M & S. R. R. Co., 80 Mo. 147, and cases
II. It is next insisted that on the evidence the court should have .given the instruction asked by defendant, in the nature of a demurrer to the- evidence. At the close, of plaintiff’s evidence there were facts from which the court or jury might have reasonably inferred that the injury was produced by collision with the defendants’ locomotive. Such inferences from a given fact or facts established by evidence are peculiarly within the province of the jury, and its finding is conclusive on this court.
The defendant demurred to the evidence after introducing the testimony of its engineer. As a matter of course, if the testimony of the engineer should be credited the finding should have been for the defendant. But it was for the jury, or court sitting as a jury, and not this court, to determine whether the testimony of any witness should be credited. With that discretion of the triers of thefacts, in absence of passion or misconduct, we cannot interfere. See Gregory v. Chambers, 78 Mo. 294, and authorities cited and reviewed.
III. We are asked in this case to reconsider and determine the constitutionality of the double liability clause of said section 809 of the statute. This question has been fully considered and decided at this term in the case of Humes v. Mo. P. R'y Co., ante, p. 221, affirming the constitutionality of the statute. To that decision we adhere.
It follows that the judgment of the court of common pleas should be affirmed.