Price v. Barnard

65 Mo. App. 649 | Mo. Ct. App. | 1896

Ellison, J.

This action was brought against defendant as receiver of the Omaha & St. Louis Railway Company, in which plaintiff claims damages for killing some and injuring others of plaintiff’s live stock. At the close of the evidence, the plaintiff amended his complaint by stating that the stock was killed by the train of the Wabash Railroad Company, running over the defendant’s track. There was a judgment for plaintiff.

At the close of the testimony for plaintiff, there was a demurrer to the evidence overruled by the court. This demurrer was mainly directed to the failure of plaintiff to prove that defendant was receiver of the road as alleged. But defendant introduced evidence which tended to prove that defendant was receiver and was operating the road. The character of this evidence can not be objected to now, as it was admitted without objection in the trial court. So, while defendant’s demurrer may have been well taken when presented, the defendant waived it by introducing evidence himself in which 'there may be found sufficient to authorize a finding that defendant was receiver. We rule the point against defendant.

And so do we, also, the point that defendant should not be made to answer for the act of the Wabash company. The evidence showed that the Wabash company was operating its trains and crews over the road; and while there was no proof of a lease to the Wabash company, there was sufficient to authorize a- finding that there existed a license to the Wabash company from defendant. We have held that the licensor railway is responsible for injuries inflicted by the licensee company. McCoy v. Railroad, 36 Mo. App. 445.

We also rale the point against defendant that the court should have given the demurrer to the evidence offered at the close of all the evidence. This was directed to the points already suggested, to the alleged failure of plaintiff to show a liability on defendant for the defective fence;' in that, while the evidence showed a defective or broken down fence, it did not show that defendant had notice of it. There is no evidence of notice to defendant, but there is evidence in the record which would authorize the jury to infer notice, if defendant had been diligent in watching over and caring for the safety of the track and right of way. A perusal of the evidence satisfies us that there was sufficient on this head to submit to the jury and to fully authorize them to infer, as a reasonable inference from the facts shown, that defendant had notice of the defects in the fence. And so we think there was sufficient evidence of actual collision by the train with the stock to.submit to the jury. The plaintiff testified that he “had cattle on pasture and they got out of there on the railroad and the cars caught them wp there and hilled them.”

But the difficulty with plaintiff’s case is that he obtained an instruction from the court peremptorily directing the jury to find for the plaintiff. This was error. It is apparent from the record and from what we have already said that there were points necessary to plaintiff’s case, which were to be determined by the jury, and while the case was made out sufficiently to submit to the jury, it was not one of those cases justifying the court in taking it from the jury, and for this error the judgment must be reversed.

Referring again to the amendment of the complaint at the close of the evidence, whereby the charge of killing the stock was changed from defendant to the Wabash Railway Company, nothing appears in the record to lead us to believe that there was an abuse of discretion by the court in permitting the amendment. We would have been better satisfied with the complaint, if it had alleged a lease or a license from defendant to the Wabash Railway Company, but since the cause originated before a - justice of the peace, we are not inclined to hold it a fatal defect, though before another trial it ought to be amended in this respect, so as to save all question about a matter which can be so easily set at rest.

The judgment will be reversed and cause remanded.

All concur.