Townsley v. Missouri Pacific Railway Co.

89 Mo. 31 | Mo. | 1886

Henry, C. J.

This action is for the recovery of' double damages for the killing of a mare belonging to plaintiff by a train of defendant’s cars, alleged to have occurred by reason of defendant’s failure to erect and maintain its fence at the place where the animal went upon the track.

The testimony was substantially as follows: This mare, with other stock belonging to plaintiff, escaped from his premises and went upon defendant’s track at a point where the lower four wires of a fence erected by defendant were down leaving only the top wire. It. was originally a barbed wire fence five feet high, erected about six months before plaintiff’s mare was killed. There was no evidence to show how long the four wires had been down. The only testimony on this point was that the four wires were down where the mare got on the track and was killed. There was a demurrer to the evidence, which was overruled, and the court instructed the jury that if they found that the mare entered upon the track by reason of there being no lawful fence on the sides of said road where the animal went upon the track, and that she was killed by reason of the defendant ’ s failure to erect and maintain lawful fences, etc., plaintiff was entitled to a verdict. There was a verdict and judgment for plaintiff from which defendant has appealed.

There was no testimony tending to prove that defeendant had failed to erect a lawful fence where the animal went upon the track. On the contrary the testi- ■ mony on. the part of plaintiif as well as that for the de- ' fence, established the fact that the defendant had, only •-six months before the mare was killed, erected a lawful -fence. It then devolved upon plaintiif to show some neglect on the part of the defendant in maintaining- the fence; that the defendant liad notice of its condition, or that it had been so long out of repair that notice should be inferred. It is not the law that if a storm prostrates a railroad fence, or malicious persons tear it down, or by accident of any kind it is demolished, the company is liable under the double damage act for an injury to animals straying upon the road at that point, unless it had. notice of the condition of the fence, or it had remained :SO long out of repair that want of knowledge could be imputed to the negligence of the company. O lardy v. Railroad, 73 Mo. 576; Qlmbbuelt v. Railroad, 77 Mo. 591; Young 'o. Railroad, 82 Mo.‘427.

The judgment is reversed and the cause remanded.

All concur.