104 Mo. App. 651 | Mo. Ct. App. | 1904
Lead Opinion
The plaintiff sues for damages for the killing of two of his mules by defendant, the petition being in three counts. The first alleges that the animals came upon defendant’s track and were killed at a point, where defendant’s railroad was not fenced, as required by law. Plaintiff prays for single damages and for a reasonable attorney’s fee as provided by sections 1106-07, Revised Statutes, 1899. The second count is for double damages under section 1105, Revised Statutes 1899. And under the third count, plaintiff seeks to recover damages for the negligent killing of said animals by defendant. A jury was waived and the cause
At the request of the defendant the court gave the following instructions:
“1. The court instructs you that upon all the evidence bearing upon the third count of the petition the plaintiff is not entitled to recover and your verdict must be for the defendant on that count. '
“2. The court instructs you in reference to the first and second counts of the petition that if you believe from the evidence that the plaintiff’s mules were struck at a point on defendant’s railroad within the switch limits of the station of Huntsdale and that the length of the track set apart and used by the defendant as its-switch at said station was unnecessary (necessary) for the transaction of the defendant’s business at said station or for the convenience of the public in transacting business thereat or for the safety of the men engaged in operating trains then the defendant was not required to fence its tracks at said place and the plaintiff can not recover on said counts.”
By request of plaintiff the court made a finding of facts as follows:
“First. ' As matters of law the court finds that the defendant was not required to fence its tracks at the station at Huntsdale, if such fencing would interfere with the.transaction of the business of said company with the public or endanger the lives and safety of its employees and officers in operating its cars. -
“Second. As a matter of fact the court finds that the fencing of said road at the Huntsdale station would have interfered with the business of said road with the public and endangered the lives and safety of its employees and officers in operating the same. '■
‘ ‘ Third. As a matter of law the court finds that it was the duty of the engineer operating-the train which killed the mules in question to have used all reasonable effort and -skill to have stopped the train and avoided*655 striking and killing said mules after lie saw them ahead of him on the track.
“Fourth. As a matter of fact the court finds that said engineer operating said train did use reasonable care and skill to prevent the train from striking the mules after he first saw them on the track.1 ’
The evidence discloses that the animals came upon the track within the switch limits of the station and were: killed after they had passed such limits at a bridge where the track crosses a stream. As to whether the engineer in charge of the locomotive could have seen the animals in time to avoid killing them, or that he in fact did see them before they were struck by the engine, the evidence is somewhat conflicting.'
As the animals came upon the track within the switch limits the fact that they were killed at a point beyond such limits and where the defendant was required to fence would not render defendant liable under either the first or second counts. The defendant was required to fence its tracks at the station. Loyd v. Railway, 49 Mo. 199; Edwards v. Railway, 66 Mo. 567; Grant v.. Railway, 56 Mo. App. 65; Morris v. Railway, 58 Mo. 78. And it is the place where animals come upon a railroad track that determines the liability of the company and not where they are injured or killed. Hurd v. Chappell et a., 91 Mo. App. 317, and authorities cited.
The finding of the court that the place where the animals came upon defendant’s track was within the switch limits, and substantially that such switch limits were requisite for the business of the company and public and for the safety of the railroad employees, is conclusive on the question of the reasonableness of the length thereof.
The plaintiff was not entitled to recover under section 2867 of the Damage Act because the animals did not get upon the track at a point where defendant although' not required to fence yet might have done so' without
The court found that the engineer operating the train used reasonable care and skill to prevent it from striking the mules after he first saw them on the track.
If it was a pertinent inquiry whether the engineer could have discovered the mules on the track by the exercise of reasonabe care in time to have prevented the killing, it was not raised by the plaintiff. He asked no instruction raising such issue, consequently it is not permissible for him to raise such issue for the first time in this court. The instructions and declarations of law given appear to be unexceptionable. Under .our system of practice as construed by the courts the trial court is not required to instruct upon the different issues arising in a ease unless asked to do so.
Finding no error in the record the cause is affirmed.
Rehearing
OPINION ON MOTION FOR REHEARING.
The motion is based upon two grounds, the second of which has no merit whatever. We will therefore confine our attention to the first, which is as follows: “Because the opinion in this cause, in holding that the appellant after having requested the trial court to state its findings of fact and conclusions of law separately as provided by section 695, Revised Statutes 1899, was nevertheless required to ask an instruction on common law negligence for failure to exercise ordinary care to discover the stock on the track in time to avoid its injury, and for that reason is precluded from raising such question on appeal, is in conflict with the following decisions of this court and also of the Supreme Court, which same this court must have inadadvertently overlooked. Then follows a list of numerous cases cited.
