*1 SUPREME COURT OF n Co. may guilty the crime of be the defendant is of It may convicted It that he would be embezzlement. any impartiality jury fairness trial where the judge questioned. not that is the trial could not be But Guilty en- the defendant was innocent, criterion. thorough- fairly impartially. to be titled tried We ly character have that convinced that defendant did not of trial. questions we which

There are numerous the case A will retrial eliminate not undertake consider. to necessity consideration. future most of them from plainly apparent For the sole that it is record that fair whole did have that defendant impartial person every trial for a on trial crim- judgment inal offense should be reversed entitled, is and the cause trial. It is so remanded another ordered. All concur. &

WILLIAM SAMPSON TOPEKA SAN ATCHISON, Appellant. FE TA RAILWAY COMPANY, Two, February 26, Division 1926. Injury Although

RAILROAD: Cattle-Guards: to Cattle. is a railroad way required right point its where loose to fence public-road crossing its cattle entered its track 1919) limits, required by (Sec. statute switch R. S. it cattle-guards crossings maintain at all to construct fenced, required right way sufficient where the to be track being proceeding along track and the cattle from point; injury as a at a and for to cattle killed different wing result of its failure to maintain way crossing, right required at a wherever simp- damages. is not excusable is liable double it required ly construct and maintain cattle- it was not because right way; guards where the cattle entered cattle, entering, along the track and after ran is liable if the killed, maintain failed to construct and it right intervening where the statute at an way be fenced. Cyc., p. 1182, Railroads, n. 48. TERM, Hailway

Transferred from of Appeals. Court *2 Affirmed.

Gyrus H. Crane, Geo. J. John Mersereau, Lathrop, Winston E. Woodson Murrell for appel- Charles E. lant.

On the undisputed plaintiff’s evidence cattle hav- entered the ing at public crossing and a point where railway obligated was not to maintain wing fence and defendant and its liable, demurrer evidence plaintiff’s demurrer the close all evidence have been & sustained. R. S. sec. Edie v. 9948; Sons Ry. Co., 133 Mo. App. 9; Gilpin 118; v. Ry. Co., 77 S. W. v. Gilpin Ry. 197 Mo. Co., 319; Ry. Pearson v. 33 Mo. Co., 543; Cororan v. 138 Mo. App. Railroad, App. Hurd 408; v. 91 Mo. Chappell, App. Co,, Redmond 104 317; Ry. v. 651; Mo. 64 App. Swearingen v. Railroad 73; Mo. Co., v. Robertson 64 Co., Mo. v. 412; Ry. Webster 57 Mo. Co., App. 451; Kirkpatrick v. .120 Mo. Railroad, App. 416; Acord v. Railroad App. 84; Sow- ders v. Ry. Co., 104 S. W. v. 1122; Worley Ry. 135 Co., Mo. App. v. 461; Dorsey 175 Rucker Railroad, App. 150; Mo. v. 221 S. 393;W. Francis 226 Lusk, v. Bush, é

Campbell Ellison for respondent. 9948 Section requires cattle-guards to maintained places all fences are “and also to construct and maintain cattle-guards where fences are required sufficient to prevent horses, etc., getting on the railroad.” The court could not matter of aas law declare cattle-guards were not required main- tained at the overhead or between them and the bridges, switch 860 to 1,500 feet to the east “sufficient to prevent cattle” from on the track. Miller going v. Company, Mo. App. 209; Boucher v. 199 S. Wabash, W. 742. COURT SUPREME OF Worley discuss in Railroad, right-of-way” meaning and hold of “entered go upon cross- if animals the track at place at a and are killed and wander requires

where the statute fences and responsible the animals “because rea- cattle-guards enabled son of the fact that the absence of Worley approval them to cited with do so.” The case is Raindage statute re- in S. 396. The Wabash, W. quires cattle-guards wherever fences be constructed liability required. exempt To defendant from does to hold that statute be, effect, would cattle-guard and maintain a it to construct any place State. on its'line *3 C; plaintiff

HIG-BEE, sued for recovered and County judgment in the Circuit Court of Adair for double injuring five and five steers right-of-way railway others com- on defendant judgment pany. appeal This was affirmed on Appeals. judges deem- Court of One decision conflict with decisions of this appellate and with decisions of the other courts State, cause was transferred to this court. August plaintiff shipped

On carload City, cattle over rail- Missouri, from Kansas defendant’s Cardy, road to a station rail- at himself defendant’s they County, in Macon where were unloaded into road pens nine r. m. with his Plaintiff, defendant’s about stock stock- drive the cattle from assistants, undertook to said pens doing County, farm in Adair in so neces- his and sarily upon crossing them road the rail- drove pens and the stock and the station, road tracks between when cattle were the railroad tracks at said point they away and ran west the railroad broke they where were tracks about two struck one miles, were and some were killed and some defendant’s trains injured. the cattle ran still further west The remainder of Vol. TERM, Eailway injured by on tlie killed and another track others were Cardy From train. the west end of limits at the switch passes through fields, railroad inclosed and cultivated many years it lawful was had been inclosed points fences on both sides of the injured, there where were killed and cattle-guards any point no railroad between Cardy miles west station five Elmer, station Cardy. company under It railroad is conceded duty 'point no where fence its at the public- upon the at the cattle entered defendant’s track may it within limits. And its switch re- neither further conceded a railroad quired permitted or station nor inclose its Appellant grounds necessary limits. switch ques- that the in the brief its learned contends, counsel, wing and cattle- it tion whether should have had guards, “The nothing case. has whatever do with say, dif- makes no cases all counsel “that hold,” so right-of-way, or run ference far how the cattle many may they pass places how

wing if and maintained, fences should have been built law enter the wing fences, there does not liability under the statute.” no part: 1919, reads, Revised Statutes Section operat- corporation running “Every . railroad ing any shall maintain State, in'this erect and *4 where the same of the road lawful fences the side adjoining passes through, along or or enclosed cultivated . . . and also to construct fields unenclosed lands cattle-guards, where fences are and maintain prevent all other mules and horses, sufficient to cattle, getting railroad,” etc. on the animals from right-of- In Edwards v. up by way inclosed fences of the railroad Pickering open line the town to the south depot lying the limits grounds of the defendant SUPBEME COUBT OP MISSOURI, point cattle-gnard

of said town. At this there was a connecting only high. cross two Plaintiff’s feet right-of-way cow entered the cross inclosed over this by page fence and was killed a train. At Hough, point cattle-gnard said: “At J., in undoubtedly was constructed in the track, it. was duty of the defendant to construct a other cross-fence, or from, extending barrier the track to the fences on the sides prevent of the road, ‘sufficient to horses, mules cattle, getting and all other animals from on the railroad,’ other- along open- wise the fences the sides of the road and the walking along in the track to wholly unavailing. roadbed would be fences, Such cross may very properly or other barriers, be considered nec- as essary parts cattle-guard.”

The case is on all-fours with the bar. Worley In Railroad, crossing

1039, mule a went a railroad track at the public highway of a account a absence cattle-guard, strayed down the track where fences were by and was killed train. It was held that right way fact that it entered public highway was no J., defense. Beynolds, P. 465): (p. clearly prescribed by “But it is the statute provided must be on each side it is as road shall be and if animals get right-of-way off of the where that by crossed and because of road, the absence of cattle-guards, wander down or and on to the track and are killed, then the responsible double because the animals on the were reason fact that the absence of enabled Every them par- to do so. . . . case ticular has been considered holds that under such conditions damages. the railroad is liable in double . imperative The ity imposing statute is as a double liabil- where animals are killed absence of failure to fence, is so *5 TERM, 1925. 671 Railway Sampson Co. v.

plain hardly If the animal to construction. gets place to failure at which it a erect appliances and maintain either of these where regardless of recoverable, then double are where ’’ the occurred. App. 387; v. Mo. See Johnson Railroad 27 Co., also App. Mo. Acord v. Rail- 560; Chouteau v. Railroad 28Co., App. road 113Mo. 87 Co., S. W. 90, majority opinion by In the the J.,P. Trimble, many general case, stant it is said: “In cases the state- ‘it is the animal ment is made that the where oil li- fixes the track, killed, the and not where it was ’ ability a such is correct statement of the road, applied cases; to facts in law as those correctly applied general is can peculiar statement be to instance, in the case bar? For facts above Ehret unquestionably correct case of statement is in the App. 20 256, Railroad Mo. Co., v. were struck

issue was whether while within the county or whether road across the railroad limits they got such limits and outside of of the railroad have fence and reason of the failure to a ’’ cattle-guard kedp them off it. judge Dorsey reviews v. Railroad The learned then App. 175 157 v. Rail 160, 1065; Mo. S. W. Co., Redmond App. Bumpas Co., 651, 768, road 77 S. W. Co., 115, 77 S. W. Wabash appellant’s opposed contention. Con shows says: tinuing, J., P. Trimble, Gilpin “The v. Missouri Railroad application has no facts Mo. present contention is made herein that case, no necessary switching placed Gilpin In the case there were no cattle- to be done. guards side of could county ends switch-tracks crossed road with since be, on side the road. each And of such switch-tracks say, necessary employees page 322; ‘it was on pass operating these foot over switches SUPREME COURT OP crossing’, cattle-guard at this would en- there danger their lives.’ Moreover case was not *6 Double-Damage providing Act, but is on Section go right-of way that if live in on the and the rail- stock point, required road is not, such the rail- ’’ frightening injuring road is liable for or stock. such by judge, Other cases reviewed the learned Appellant we will not make further citations. concedes it has built and maintained fences on both sides of its plaintiff’s cattle were billed and jured. There can be no re- the statute quired it to build and maintain these fences. The statute equally is clear that it is to construct and main- tain where fences are sufficient to cattle, mules all horses, other animals from getting on the railroad; and until such fences . as aforesaid shall be made main- corporation tained, shall be liable in double the damages agents, amount of all shall be done engines or ears to mules horses, cattle, or other animals escaping coming from or fields or enclos- lands, ures, occasioned either case the failure to construct cattle-guards. or maintain such fences or This statute plain perspicuous way- so that even the traditional faring man need not err therein. There has been much writing given loose some of the cases, which has oc- appellant’s casion for the contention learned coun- controversy sel, but it too obvious for that their conten- respect, judicial tion in this if sustained, would work a re- peal every statute; in fact, impunity, operate in could, State its line with- constructing maintaining cattle-guards out wing- plain fences, the face mandate of the statute. controversy There is no about amount injuring plaintiff’s assessed for the cattle. TERM, 1925.

State Burns. Appeals majority opinion ap- the Court proved, judgment of circuit is affirmed. and the Bailey, G., concurs. foregoing opinion

PER CURIAM: The Higbee, adopted opinion isC., All of the court.

judges concur. Appellant.

THE STATE v. ASA Q. BURNS, Two, February 26, Division Supplemental: Origi- 1. MOTION FOE NEW TEIAL: Abandonment of supplemental which, trial, filed, nal. timely A *7 motion for a new in jury the mover asks the court to set aside verdict of the grant following him a new trial “for the addition reasons in previous reasons set forth in the motion for a new trial filed” on day, filed, previous timely is not an abandonment of such motion and neither the trial court nor this court is restricted to a considera- assignments supplemental tion of error mo- contained in supplemental clearly tion. The motion and in unmistakable terms calls the attention of the court to the fact that the mover grounds already motion, abandoning previous set -in the forth abandonment, an al- be held to be practice though is not commended. Apprehended FELONIOUS ASSAULT: Self-Defense: Assault: In- Eeinforcing Apprehension. sults Wife In the trial of defend- kill, ant, charged assault with intent where the with felonious defendant, prosecuting State’s evidence indicates that as the and, public street, pistol him a witness was about to meet drew a any provocation whatever, began him, and where without to shoot did until is self-defense and that defendant not shoot the defense made movements and assumed an attitude the witness hostile defendant, testimony dicating of defendant’s he was about to shoot child, she, prosecuting and the witness that while with her wife defendant, rooming her same house and while the city, prosecuting husband, at- distant witness absent her, against familiarities, tempted hands laid lascivious undue her, will, sought to enter her room and caress to fondle her attempted have sexual her into his room time drew one successfully conduct, her; his she resented relations Sup. 312 Mo. —43.