47 Mo. App. 189 | Mo. Ct. App. | 1891
This was an action brought by plaintiff against the defendants, receivers, operating the-Missouri, Kansas & Texas Railway Company, for the-recovery of damages for injuries to a mare and colt. The-petition contained two counts, one based on section 2611, and the other on section 2124, Revised Statutes. The plaintiff had judgment on the second count of the petition from which defendants have appealed. Defendants-assail, the judgment on a number of grounds which we shall now proceed to examine in the order of their assignment.
II. In view of the. fact that the jury found for the defendant on the first count of the petition, it becomes, unnecessary to examine the evidence for the purpose of' determining whether the court erred in refusing to sustain the defendant’s demurrer to the evidence or in giving instructions thereon, or in submitting the issue-therein to the jury. Cory v. Railroad, 60 Mo. 209.
III. The defendants further centention is, that the mare and colt strayed upon the defendant’s right of way and track within the station limits of the village of Harrisfon, and within the switch limits of the station, and that at that point the defendants could not have
We cannot say there was no evidence adduced, the • Tendency of which was to show that defendants may mot have fenced their road wdiere the plaintiff’s ani-rnals strayed upon their railway track, without causing inconvenience either to the agents, servants and employes of defendant, or to those who might have occasion to transact business with, defendant’s railway, .or the public at said point. No part of the road ran Through the village of Harriston, as appears from the ■plat contained in the bill of exceptions. It appears That the defendant’s track abuts against the western ¡boundary of the village, and that there is one hundred feet of ground intervening. The village is east of the ■defendant’s road, and its location is entirely immaterial for the purpose of determining the right of the parties to this action. The station and switch limits must be considered as though the village was not there,
IY. The plaintiff’s first instruction, which was-drawn under the first count, need not be considered, since the jury, as has been already remarked, found for the defendant on that count. And, as to his second, we think it very fairly declares, the rule applicable to the evidence under the section of the statute on which the second count was based. It directed the jury, among other things, that, if the defendant could have fenced their railroad at the point where the plaintiff’s; animals came upon the track without causing inconvenience either to the servants, agents and employes of defendant or to those who might have occasion to transact business with defendants, and without unnecessarily increasing the hazard of life and limb of the defendant’s, trainmen in the necessary discharge of their duties and work in operating their said road, and it was necessary for the public and the defendant that said railroad at such point should be left open and unfenced, then their verdict should be for plaintiff. The objection that this instruction omits to mention the “depot grounds and switch limits,” in the exception, is without force. This
The plaintiff’s third instruction was approved in Jennings v. Railroad, 37 Mo. App. 651, which in many respects was a case similar to this.
Y. The first and second instructions given for defendants are substantially the same as the fifth and sixth, which were refused, so that there seems to be no ground of complaint based on the action of the court in refusing instructions.
We do not believe that there has been any error committed by the circuit court against the defendants materially affecting the merits of the action, so that it Jesuits that the judgment must be affirmed.