Payne v. Quincy, Omaha & Kansas City Railway Co.

JOHNSON, J. — This suit was begun before a justice of the peace in Penn township, Sullivan county, to recover double damages under section 1105, Revised Statutes 1899, for the killing of four hogs. Plaintiff [611] had judgment in the circuit court and defendant appealed. Complaint is made of the refusal of the trial court to instruct the jury to find for defendant. It is said the evidence failed to sIioav that the killing occurred in the township where suit was brought. The statement alleged that defendant owned and operated a railroad “over and across the following described lands belonging to plaintiff lying and being situated in Penn township; Sullivan county, Missouri, to-wit: “East half of the northwest quarter and the north half of the northeast quarter of the southwest quarter of section 25, township 63, range 19.” The constable’s return recited that the writ was served on defendant’s station agent in Penn township. Plaintiff testified that he was the owner of the land described in the petition. The fact of its location in Penn township Avas not a subject of controversy and as the killing occurred where the railroad ran through this land, its location in Penn tOAvnship Avas sufficiently proven. [Kerr v. Railroad, 113 Mo. App. 1.] Further, it is said plaintiff failed to prove defendant’s ownership of the railroad. The following is the testimony of plaintiff on this point: Q. “I will get. you to state if the defendant’s railroad runs through your farm? A. It does.” As defendant gave no intimation of purpose to resist the action upon the ground that it did not own nor operate the road, further proof was unnecessary. [Oyler v. Railroad Co., 113 Mo. App. 375; Kerr v. Railroad, supra; Keltenbaugh v. Railroad, 34 Mo. App. 148; Geiser v. Railway, 61 Mo. App. 459; Lindsay v. Railroad, 36 Mo. App. 51. Also, it is urged that- plaintiff failed to prove that ' the hogs were struck by a train. No direct evidence Avas introduced for no one saAV the killing; but the facts and circumstances disclosed very strongly pointed to a collision between the animals and one of defendant’s trains as the cause of injury. The ultimate fact to be found in [612] such cases, as in others, is not required to be proven by direct evidence, but may be inferred from other facts and circumstances. The defective condition of the fence separating plaintiff’s feed lot in which he kept his hogs from deT fendant’s right of way was shown, as was also the fact that the hogs reached the railroad track by passing through the defective fence. A clear case for the consideration of the jury was made out and therefore no error was committed in overruling the demurrer to the evidence. No other is claimed. The judgment is affirmed. All concur.