61 Mo. App. 594 | Mo. Ct. App. | 1895
—This is an action based on sections 2612 and 2613, Revised Statutes, 1889, to recover the damage alleged to have been sustained by the injury to a mare, the property of plaintiff. There was a trial in the court below, where the plaintiff had judgment, and from which defendant has appealed.
In Foster v. Railroad, 90 Mo. 116, and in other cases there cited, it was, in effect, ruled that where an action
In order to make out a case under these statutory provisions, it devolved upon the plaintiff to show: First, that his mare went upon the railroad right of way, at a place where the same was not inclosed by a good fence, such as is required by law; second, that she was frightened by a locomotive or train of cars; and third, was injured by running into, the defendant’s bridge. It was essential for plaintiff to prove that the mare was frightened by defendant’s locomotive, or train of ears, and for that reason ran upon the bridge from which she fell and was injured. Perkins v. Railroad, 103 Mo. 52; Briggs v. Railroad, 111 Mo. 168.
. We have very carefully examined the record, but have utterly failed to find any evidence whatever which tends in the least to prove that the plaintiff’s mare was frightened after going upon the right of way, by defendant’s locomotive or train of cars, and for that reason went upon the bridge.
No fact or circumstance is shown by the evidence to justify the inference that the mare was frightened by the cars and for this reason attempted to cross the bridge. If she ran upon the bridge, in consequence of fright, the cause of such fright is utterly conjectural.
It follows that the plaintiff is not entitled to recover and that the defendant’s instruction in the nature of a demurrer should have been given. The judgment will be reversed.