Kirkland v. Missouri Pacific Railway Co.

Norton, J. This was an action to recover double damages for the alleged killing of seven hogs belonging to plaintiff. Upon a trial in the circuit court, the plaintiff testified in his own behalf, “that he was the owner of the hogs sued for, and they were of the value of $3 each, and that one of them got on the defendant’s railroad and was killed east of the public road which comes into Stoutsville from the east, and that one of them was killed just south of his shop and west of the last mentioned public road, aud the others just West of the last mentioned place on defendant’s road, and that there was no fence along the side of defendant’s road at that point; and that defendant’s road-way abuts upon the platted town of Stoutsville, -where the last named six hogs were killed. That all of said hogs were killed in Jefferson township, Monroe county, Missouri.” This being all the evidence, the defendant asked the following instruction : . “ That plaintiff is not entitled to recover in this action for any of the hogs that were killed on that part of defendant’s road which abuts upon the platted portion of the town of Stoutsville.” This instruction was refused, to which the defendant excepted, and thereupon the court found for the plaintiff* aud upon his motion, rendered judgment for double damages. The defendant unsuccessfully moved for a new trial, excepted to the action of the court in overruling it, filed its bill of exceptions, and brings the case here by appeal. It does not appear that defendant’s road passes through the town of Stoutsville, but, on the contrary, it does appear from the plat referred to in the bill of exceptions, that the .entire road-bed as well as right of -way on either side is entirely outside the limits of the town. Neither does it appear that there were any streets or alleys in the town of [468] Stoutsville either across or abutting on defendant’s right of way, the northern line of which abutted on the southern line of the town. On this state of facts we must hold, under the ruling of this court in the case of Wymore v. Railroad Co., 79 Mo. 247, that the court did not err in refusing the instruction asked. Judgment affirmed, in which all concur.