Williams v. Missouri Pacific Railway Co.

74 Mo. 453 | Mo. | 1881

Norton, J.

This action was instituted in the circuit court of Pettis county to recover double damages for injuring plaintiff’s mule by defendant’s engine and cars, it being alleged that said mule had strayed upon defendant’s; road at a point -where the said road was not fenced as required by law, and was crippled so as to be valueless. Defendant’s answer is a general denial, and also sets up contributory negligence. Upon the trial plaintiff had judgment for $300, from which the defendant has appealed.

i. railroads: ?n“stockAprima facie case. At the close of plaintiff’s evidence defendant demurred thereto, which was overruled, and this action of the court assigned as one of the grounds.of error. The demurrer to the evidence was properly overruled. It clearly established.the fact that defendant’s road passed through the inclosed lands of plaintiff', and that on the side of its said road the defendant had failed to erect and maintain such a fence as by law it was required to do ; that plaintiff’s mule strayed upon the track of the road for want of such fence, and was run against by defendant’s engine and cars and so crippled as to be rendered wholly valueless; these facts clearly make out a prima facie case that the failure to fence occasioned the injury.

2 _. eontrill. utory negligence, It appears from the evidence that plaintiff’s barn and also a four acre lot adjoined the defendant’s road, and that plaintiff also had a pasture of sixty acres between which and the said four acre lot there was a division fence; that plaintiff’, the night preceding the injury to the mule, turned it into said pasture, and that during the night two panels of the plaintiff’s fence dividing the said pasture and said four acre lot were blown down by a violent wind, that the said mule passed through the opening thus made into the four acre lot, and from thence it went on to the track of the road, the railroad fence being so out of repair that, in many places, it was not over three or three and a half feet high, and in many places so knocked down that a person could step over it, and that it had been in that condition for a long time. It is claimed that this state of facts showed contributory negligence which was the proximate cause of the injury. We cannot perceive the ground on which, this claim is based. It certainly was not negligence for plaintiff to turn his mule into his sixty acre pasture, especially when separated by a sufficient fence from the four acre lot; nor can he be chargeable with negligence, because his mule passed through two panels of his own fence, wRich a storm had blown down the night the mule was turned into his pasture. The four acre lot was used by plaintiff for a feed lot, and had he seen fit to remove entirely the fence dividing this lot from his pasture, he might have done so without subjecting himself to the charge of contributory negligence.

3 _. _. instructions. Upon the above state of facts the court instructed the jury in substance that, if they believed plaintiff’s mule strayed on defendant’s road at a point where it ran through, along or adjoining the inclosed or cultivated land of plaintiff', and that at said point said railroad did not have a good and substantial fence at least five feet high, and that said mule was injured by defendant’s engine and cars, they would find for the plaintiff'. This instruction is objected to on the ground that the court failed in it to direct the jury that they must believe the failure to fence “ occasioned ” the injury. The precise question which this objection raises was before this court in the case of Moore v. Missouri Pacific R'y Co., 73 Mo. 439, and it was expressly held that such an omission was not reversible error, distinguishing that case from the cases of Luckie v. C. & A. R. R. Co., 67 Mo. 245, and Cunningham v. H. & St. Jo. R. R. Co., 70 Mo. 202. See also Edwards v. K. C., St. Jo. & C. B. R. R. Co., ante, p. 117.

4 __.__. petition. It is also objected that the petition does not state a cause of action in this, that it does not allege that the Ta.ilure to erect and maintain a sufficient fence along the side of the road “ occasioned” the injury. It is true the pleader did not use the word “ occasioned,” but it is also true that he did use words equivalent to it in alleging the cause of the injury. It is alleged that the mule in question strayed upon the railroad at a point where it ran along and through plaintiff's inclosed lands and at a place where said road was required to be fenced, but was not fenced with a good and substantial fence five feet high, and that defendant carelessly suffered the fence to be thrown down and remain down, * * by reason of which negligence the said mule strayed on the track as aforesaid and was crippled and injured by the engine of defendant. The words here employed convey to the mind the idea that the failure to fence was the cause of the injury, as fully as if the word “ occasioned ” had been used. Judgment affirmed,

in which all concur.