Dilly v. Omaha & St. Louis Railway Co.

Ellison, J. This action was instituted under the provisions of sections 2611 and 2612, Revised Statutes, 1889, wherein an action is given for damages to stock [127] which may go upon a railroad right of way by reason •of there not being a sufficient fence, and are injured in ways other than by colliding with the train. Judgment was given for plaintiff, both in the justice's ■court and the circuit court. Defendant has brought the case here. I. Defendant contends that there was no evidence tending to show the township in which the injury occurred. We think there was when it is all considered together. The reasonable inference to be drawn from all the testimony on this point, was that the- injury ■occurred in Benton township. ■ Defendant further contends that the court committed error in instructing the jury that the law restraining •swine was in force in Daviess county. There being no evidence on this subjectthe instruction should not have been given; but we accept the view presented by plaintiff's counsel in this regard, and hold that, under the testimony as applied to the law of the case, no possible injury resulted to defendant by reason of the instruction. When it is apparent that no harmful result can follow from an error, the holding has always been that it was not reversible error. Again, defendant contends that its instruction number 8 should not have been refused. This instruction declared there was no evidence that the bay mare was injured as charged in the plaintiff's complaint, and that no damage for her injury should be allowed by the jury. We have examined the evidence on this point in connection.'with argument of counsel, and have concluded to rule it against defendant. The evidence, we agree, is not as satisfactory as it might have been, but ■at the same time, when we consider that we must allow it the weight which every reasonable inference can properly give it, we cannot do otherwise than sustain ■-thp action of the court in submitting this issue to the [128] jury, and in, also sustaining the jury’s conclusion thereon; especially since the trial court refused to interfere therewith. II. The next point of objection is based on the allowance of an attorney’s fee of $35, under the provisions of section 2612, Revised Statutes, 1889. The trial court allowed the fee, without calling a jury, and without any waiver of a jury being entered by defendant as provided in section 2133. No objection was made to this by defendant, except by a motion in arrest. It was decided in Briggs v. Railroad, 111 Mo. 168, that a reasonable attorney’s fee, as allowed by the statute aforesaid, was an issue of fact' in the sense of the statute, section 2121, and that the parties were entitled to a jury, unless one was waived. It was furthermore decided in that case, that there could be no waiver, when the parties appeared, except by written consent filed with the clerk, or oral consent in court, entered on the minutes; and that advantage could be taken of this by motion in arrest. No waiver, as contemplated by that decision, was made in this case, and we must hold under that authority that error was committed against defendant. Plaintiff’s counsel make a strong argument with citation of authority, against this view, but we are bound, under the constitution, to give the defendant the benefit of the last ruling of the supreme court. The result is that we will affirm the judgment as to all things save that for the attorney’s fee. As to the latter we will reverse the judgment and remand the cause for trial as to such fee. The costs of an abstract and other matters attending the branch of the case involving the attorney’s fee is nominal. The appellant, however, was compelled (in a legal sense) to come to this court to be relieved of that error, and the docket [129] fee which, he has paid will therefore be taxed against respondent. All other costs will be taxed against appellant. All concur.