Maberry v. Missouri Pacific Railway Co.

Martin, C. This is an action under section 809, Revised Statutes, 1879, for damages suffered by plaintiff in the loss of a mare killed by the engine and train of defendant. The evidence tended to show that the mare got upon the track by passing through a gap or breach in the enclosing fence. A tree had fallen on the fence and broken it down. While the tree remained the inclosing fence was sufficient to turn stock. Afterward the tree, from cause not appearing in evidence, took fire and was burned, thus leaving an open space for the passage of stock. The tree had burned up some time before the mare was killed; the witness could not recollect how long before, but thought it was a week or two weeks before the injury. Upon this evidence the court gave the following instruction complained of: “The jury are instructed that though they may believe that the defendant may have had, prior to the escape of plaintiff’s stock on its road, a lawful fence where said stock escaped thereon, and the said fence got out of repair, yet such fact will constitute [670] no defence in this cause, if the jury believe that the defendant knew or might have known by the exercise of reasonable care and diligence, that its fence was defective and out of repair and that a reasonable time had elapsed after the acquisition of such knowledge, or after the time such knowledge should have been acquired in which the defendant should have repaired the same.” This instruction being in accord with the authorities in this state was properly given. Clardy v. R. R., 73 Mo. 576 ; Case v. R. R., 75 Mo. 668; Walthers v. R. R., 78 Mo. 617. It is also warranted by the evidence submitted to the jury. The objection relating to the taxation of costs incurred before the justice, having been sustained in the ■other case referred to in the evidence, need not be further ■considered in this case. The judgment for plaintiff ought to be affirmed, and it is so ordered. DeArmond, ■C., concurs) Ewing, C., not sitting.