McGuire v. Missouri Pacific Railway Co.

Ellison, J. This action was begun before a justice of the peace to recover double damages under section 809, Revised Statutes, for killing thirty head of plaintiff’s sheep and injuring others. Judgment was rendered by default before the magistrate, when defendant appealed to the circuit court of Jasper county, where, on trial, judgment was again rendered for plaintiff, defendant appealing to this court. Among other instructions asked by defendant was the following, to-wit: [327] “The court instructs the jury to return as a special verdict an .answer to this question: At what point did these sheep get on the railroad track ? and answer and return said special verdict, signed by your foreman, • in addition to your general verdict.” Under this ins.truc-. tion the jury, in addition to a general verdict, brought in a special verdict as follows: “We, the jury, believe the sheep got on said railroad track at a point,” etc. There are two objections against the action of the trial court, which have teen brought specially to our at-, tention. First, it is stated that, as the evidence fails to show at what point on the track] the sheep strayed thereon, so that it might be seen whether it was a point at which the company was bound to fence, the judgment cannot be supported. The evidence does fail to show the point of entrance, but it clearly appears that the point where the sheep were killed was such an one as the law requires to be fenced. The facts in this case bring it fairly under that of Jantzen v. Ry. Co. (83 Mo. 171). It is there said that “There is no express statement in the testimony that the cow entered upon the track where she was killed. But the facts appear in evidence that her hair, and blood, and carcass were found on the track at a point which was not, but should have been fenced. In the absence of evidence to the contrary, the natural inference is that she entered upon the track at that point, not that she entered npon the track at a highway crossing and jumped over fences and cattle guards to get there.” The second objection is that the "statement in. the special verdict .that we “believe” the sheep got on the track, etc., is not a finding, being the mere opinion of the jury. This identical question was before the St. Louis court of appeals in the case of E. & H. Brick Company v. Railway Company (21 Mo. App. 648), and was ruled against the defendant.. It was there stated that “the belief of the jury, derived from the evidence, is the basis of every verdict, and is so generally made [328] to appear in the form of the instruction : £ If you believe from the evidence, ’5 ’ etc. We are inclined to adopt this view. The judgment is, therefore, with the concurrence of the other judges, affirmed.