Binicker v. Hannibal & St. Joseph Railroad

Martin, C. This is an action for the killing of animals under section 809, Revised Statutes, 1879. In his complaint, the plaintiff claims double damages in his first count for the killing of a cow, in his second for the killing of a two year old steer, in his third for the killing, of a three year old heifer, in his fourth for the killing of a steer one and a half years old. On trial anew in the [662] circuit court without jury there was a finding and separate assessment of damages on the three first counts, which in the aggregate sum up $120, for which judgment was entered in plaintiff’s favor, to reverse which defendant appeals. The evidence failed to sustain the ownership of the property described in the ■ fourth count, and no finding either way appears in the judgment of the court. The evidence tended to prove that the cattle were all injured at the same time, and that they entered upon the defendant’s road through a gate which it was the duty of the defendant to maintain; that the gate had originally been furnished with padlock and key, and that the key had been left in custody of a near neighbor; that the lock had been torn off by parties unknown'; that in place thereof the defendant substituted a wire, one end of which was fastened on the gate frame, the other end of which terminated in a loop, which upon closing the gate, fitted over a large bull spike driven into the gate post; that the wire was too long, and gave the gate so much play that it frequently became unfastened by the wind. It also appeared that the gate was frequently left open by parties passing through. It also appeared in evidence that on the morning of the accident the section master, in company with the plaintiff, traced the tracks of the cattle from the point at which they were killed to the gate, and that on getting there they found the gatq propped open ; and that some farmers were at that time hauling wood through the gate-way and piling it up on defendant’s road-way. The court declared, as a proposition of law, that if the gate blew open for want of a proper fastening and the cattle entered upon the track of defendant while it was thus open, the plaintiff was entitled to recover. This instruction or declaration was proper enough. The defendant asked the court to declare as a proposition of law that if the gate was propped open or left open by third parties, the finding should be for defendant. I think the court erred in refusing this declaration [663] of law; and the action of the court in so doing leaves a strong inference that the court was governed in its finding by an erroneous view of the law applicable to the evidence in the case. If the gate was propped open by third parties, and the cattle entered while it was thus open, then their entry and consequent injury could not be the result of a defective fastening. The same conclusion would follow if they entered while it was negligently left unfastened by third parties, so as to admit the entry of stock. There was evidence to support this theory of the case coming from the plaintiff’s own examination, as well as that of other witnesses. For refusing to declare the law applicable to the defendant’s theory of the case, the judgment ought to be reversed. As the case will have to be tried again, I may properly suggest here that as it appears that all the cattle mentioned in the four causes of action were killed at one and the same time, all damages resulting therefrom belong to one cause of action, and that the plaintiff’s statement is improperly divided into four counts or causes of action. This defect can be cured by an amendment of the statement. The judgment is reversed and the cause remanded. All concur.