51 Mo. App. 500 | Mo. Ct. App. | 1892
This was an action commenced before a justice of the peace to recover damages under section 2611, Revised Statutes, for killing of plaintiff’s horses. There was a trial in the circuit court which resulted in judgment for plaintiff, from which defendant has appealed.
The defendant for the first ground of its appeal alleges that the plaintiff’s statement improperly joins two causes of action in one count. There was no motion filed to require the plaintiff to elect on which cause of action he would proceed to trial, as in Duncan v. Railroad, 91 Mo. 67, but this becomes unimportant since the complaint, in stating “that the coming of plaintiff’s said animals upon said railroad, and the striking and killing of said animals by the engine and cars of the defendant, was occasioned by the failure of defendant to construct and maintain lawful fences, openings, gates, cattle-guards and farm crossings at the place where said animals went upon said railroad,” according to the ruling of the supreme court in the case just cited, did not state or attempt to state but one cause of action. The plaintiff may allege a failure to maintain fences with openings and gates therein and to maintain cattle-guards, and proof of either with the proof of the other necessary allegations will authorize a recovery. Ray v. Railroad, 25 Mo. App. 104.
The section of the statute on which this action is based, requires railroad companies to maintain fences with openings and gates therein. These gates are. part
The gate being part of the fence, there was no error committed by the court in permitting the plaintiff to introduce evidence to show that it was defective and out of repair. A defect in the gate was a defect in the fence.
The defendant further urges that the trial court erred in permitting the plaintiff to prove that, on the day following the killing of the plaintiff’s stock, the defendant “put in new gateposts and fixed up the gate, and put anew latch on it.”- There was no error committed by the court in this ruling. While this evidence was not admissible for the purpose of showing past negligence on the part of defendant, it was admissible for the purpose of showing that the defect was one which the defendant was bound to repair. Mitchell v. Plattsburg, 33 Mo. App. 555; Bowles v. Kansas City (decided at present term); Brennan v. St. Louis, 92 Mo. 482; Ely v. Railroad, 77 Mo. 34; Hipsley v. Railroad, 88 Mo. 349; Alcorn v. Railroad, 18 S. W. Rep. 188. If the defendant had desired the evidence restricted to the purpose alone for which it was admissible, it should, as it did not,' have taken the precaution to have asked an instruction for that purpose.
And as to the further complaint that the trial court erred in overruling the defendant’s demurrer to the evidence, it may be stated that a careful exploration of it has convinced us to the contrary. While there is no direct evidence that the plaintiff’s stock entered through the defective fence, yet we are of the opinion that this
We think the finding of the circuit court was warranted by the evidence, and so order' the judgment thereon affirmed.
