55 Mo. App. 593 | Mo. Ct. App. | 1894
This is an action commenced before •a justice of the peace to recover damages, under the statute, for injuries to stock. There was a trial in the circuit court which resulted in judgment for the plaintiff, and from which defendant has appealed. The evidence tends to show that the defendant let a contract to McGree & Kahman to provide and place willow mats along the side of its track at a point where the waters of the Missouri river were eroding the alluvion formation underlying it. McG-ee & Kahman contracted ■with the Foleys to procure and deliver the willows to be
The defendant’s section man saw the gate open at 5:30 o’clock the evening before the night the stock were injured, and told the willow haulers to shut it, but did not know whether they did so or not. One of the defendant’s witnesses testified that the gate was closed by him at 5:30 o’clock on the evening before the stock was killed. Two of its witnesses testified that the gate was always closed when the willow cutters quit work in the evening.
The plaintiff’s stock escaped through this gate from the common enclosure and strayed upon defendant’s track when they were injured. There was no dispute but that the stock passed through the gate in question.
The jury were further told, by an instruction for defendant that, if the gate was closed about six o’clock in the evening and that, during the night, some person not in the employ of defendant went through, leaving it open, and that, during the night plaintiff’s horses escaped through it and were injured, the verdict should be for defendant.
These two instructions fairly declared the law of the case as applicable to the facts. That given for plaintiff was entirely proper on the facts which his evidence tended to establish. It left it for the jury, as was proper to do, to determine from the evidence whether the gate had, been left open for such a length of time previous to the infliction of the injury to plaintiff’s stock, that the defendant knew, or could have known, by the exercise of ordinary care, the fact, in time to have closed the gate and prevented the same. Thornton on Railroad Fences and Private Crossings, section 161. Whether the gate’s being left open during the two weeks the Foleys were hauling the willows through it, or for a shorter time, raised the presumption of negligence- against defendant and charged it with the knowledge that the gate was open, was a matter for the jury to decide. Wait v. Railroad, 74 Iowa, 207; Perry v. Railroad, 36 Iowa, 102. It was the duty of defendant to close the gate after gaining knowledge that it was open, no difference by whom left open. Wait v. Railroad, supra; Aylesworth v. Railroad, 30 Iowa, 459.
The jury, no doubt, found, as they may have well done under the evidence and instructions, that the gate had been left open by the willow haulers on the evening before the plaintiff’s stock were injured, and that it had been so left open continuously for two weeks, or more, prior thereto. They evidently did not credit the statement of the defendant’s witnesses that the gate had been closed the evening before the injury. There was a sharp conflict in the testimony of the witnesses of plaintiff and those of defendant on this point.. The jury must have given credence to that of the plaintiff’s witnesses. This was a question for them to determine. The verdict of the jury was clearly for the right party.
The objection that the plaintiff’s affidavit for the appeal from the judgment of the justice did not conform to the requirements of section 6330, Bevised Statutes, was waived by the defendant’s general appearance in the circuit court. It is true' that it made an objection there to the jurisdiction of the court; but it did not stand on the objection, but, after making the same, proceeded to the trial of the case. This, we think, constituted a waiver of the objection.
The circuit court had, under the law, jurisdiction of the action without reference to the appeal, and the general appearance of defendant to the action and the proceeding to trial gave the circuit court the requisite
We have considered the other objections urged by defendant, but find the same destitute of merit.
The judgment, will be affirmed.