202 Mo. 339 | Mo. | 1907
This appeal has been certified to this court by the Kansas' City Court of Appeals. The action was commenced in the circuit court of Barton county by the plaintiff for damages resulting from the loss of a bay mare, which had strayed upon the defendant’s right of way on account of a defective cattle-guard, and was injured and died under the following circumstances: While said mare was on said right of way, which was fenced, the defendant’s servants while operating a hand-car, and by exertions and noise intentionally made by them for the purpose, frightened said mare and caused her to run against the right of way fence, by reason of which she was injured and died from her injuries.
The animal was valued at one hundred and twenty-five dollars. The petition prayed for double damages together with a reasonable attorney’s fee.
The answer of the defendant contains, first, a general denial, and then proceeds as follows: “Defendant for further defense states, that sections 1105, 1106, 1107, 1108 and 1109, Revised Statutes of Missouri of 1899, under which this suit is attempted to be brought, are in conflict with the Constitution of Missouri, as well as the Constitution of the United States, in that, first, said sections are in conflict with section 10, article 2, of the Constitution of the State of Missouri, 1875, in this, that ‘ right and justice should be administered without sale, denial or delay.’ Second, said sections are likewise in conflict with section 20' of article 2 of the Constitution of Missouri, 1875', in this, that they authorize the taking of private property for private use, without the consent of the owner. Third, said sections are in conflict with section 21 of article 2 of said Constitution, in that, they authorize the
To this answer there was a reply consisting of a denial of the new matter. The cause was tried at the January term, 1903, and resulted in a verdict in favor of the plaintiff for one hundred and twenty-five dollars, and judgment accordingly. Motions for new trial and in arrest of judgment were filed in due time and overruled and exceptions saved.
The following facts, we are advised by the appellant, the defendant in this case, stand uncontradicted in the record: Plaintiff was the owner of the mare in controversy, and she was worth one hundred and twenty-five dollars at the time of the injury. The defendant at the time of said injury and for several years prior thereto, was operating a railroad through Barton county, Missouri. Said road passed through the northwest corner of section 24 of LeBoy township, in said county, and through section 23 of said township in a southwesterly direction. During the period aforesaid, there was a public road running along the east side of said section 23, and defendant’s road crossed this public road, and at the place where it
' ‘ ‘If you shall believe from the evidence that the cattle-guard referred to in the testimony was not. reasonably or ordinarily sufficient to prevent horses from passing over or through the same onto defendant’s railroad and right of way, and that by reason thereof plaintiff’s mare did pass over and through the same onto defendant’s railroad and right of way, and that said railroad and right of way were then enclosed with wire fences so that said mare could not safely escape therefrom except by returning to and over said cattle-guard, and that, while said mare was so enclosed on said railroad and right of way, she became frightened at the appearance of and the noise ordinarily made by the
The defendant offered no evidence and asked no instructions, except a demurrer to the evidence. In his brief filed in the Kansas City Court of Appeals, and upon which the case was argued in this court, the learned and industrious counsel for the defendant makes not the slightest reference to any constitutional question and makes no complaint of any ruling of the circuit court wherein the circuit court decided any constitutional question against him. The circuit court was 'not called upon to pass upon the constitutionality of either section 3105 or 1106, Revised Statutes 1899. The plaintiff on his part did not ask the court to hold either of said sections constitutional, nor did the court do so, either at his request or of its own motion. The court in its instruction did not permit the jury to double the damages, nor did it do so in its own judgment, and upon the reading of the judgment of the court and its instruction, it cannot be said that the court treated the petition of the plaintiff as one stating a cause of action either under section 1105 or section 1106. Moreover, in his motion for new trial no reference whatever is made to the constitutionality or unconstitutionality of either of said sections. In a word, it seems perfectly obvious to us that all the constitutional questions raised in the answer of the defendant were entirely eliminated on the trial of this cause and there was no constitutional question to pass upon. This court has repeatedly ruled that in order to give this, court jurisdiction of an appeal on the ground that a constitutional question is involved, it must appear that such question was raised