Matney v. Kansas City, Springfield & Memphis Railroad

Rombauer, P. J., delivered the opinion of the -court. The plaintiff filed the iollowingjktatement before a justice of the peace, in an action, for damages under the act approved March 31, 1885. Laws 1885, p. 92. “Plaintiff states that the defendant is a railroad ■corporation running and operating a railroad in the :state of Missouri ; that on or about the thirtieth day of ■October, 1885, plaintiff’s horse strayed upon and got upon ■defendant’s railroad in Finley township, in Webster «county, Missouri, where the said’ railroad passes along, .-.adjoining, enclosed and cultivated lands on one side, [509] and open and uncultivated lands on the other side, and: where the defendant had failed and neglected to construct and maintain fences and cattle-guards; that; defendant’s passing engine and cars frightened plaintiff’s horse at the place stated, so that said horse ram upon a trestle there being upon defendant’s railroad, and fell through and upon the timbers of the same, being thereby bruised and mangled and from the effects-of which he died, and by reasoning of frightening said horse and causing him to run upon said trestle, thereby killing him, whereby plaintiff is damaged in the sum of" one hundred and fifty dollars, the value of said horse so damaged by reason of defendant’s failure to construct and maintain cattle-guards.” Upon a trial in the circuit court there was judgment for plaintiff for the amount sued for. The defendant appealing urges two exceptions v First, that the evidence fails to sustain the verdict, and next that the court misdirected the jury. Plaintiff gave evidence tending to show that he putrhis horse into a pasture between sundown and dark that the railroad right of way in the vicinity was wholly unfenced on either side ; that the fence of plaintiff’s pasture was down, and the horse got thence upon the railroad' track and ran at full speed westwardly towards a trestle-one hundred and fifty or two hundred yards distant; that' there was next morning blood upon the trestle, and hair' of the same color as the horse’s hair, and that the animal was discovered within half a mile further on so> badly bruised that he died from his injuries. The plaintiff also gave evidence of the value of the-animal, justifying the recovery in amount, and of the-fact that a train bound westwardly passes the place-about 10:50 o’clock p. m. There was no evidence that this train passed there on the night of the accident. While there was no direct evidence tending to show that the horse was frightened by a passing train, and thus; received the injuries complained of, there was primafacie, inferential evidence to that effect furnished by [510] plaintiff’s testimony. From the fact that the train was -due at the place at 10:50 p. m., the jury were authorized to infer that it did pass there at some time during the might. The fact that, in a rural neighborhood where people are asleep at an early hour of the night, the ' witnesses called for plaintiff did not hear the train pass • in the night when this accident occurred, did not necessarily negative the inference that it did pass there that night as usual. If exceptionally no train passed • there that night, it was easy enough for defendant to : show it and thus rebut the inference. This the defend- . ant failed to do. The only complaint made of plaintiff’s instruction : is, that it does not limit the jury in their finding as to the cause of the injury, to the one mentioned in. the .statement, namely, that “the horse ran into the trestle,” but adds or “into any other object along the ■line of defendant’s road.” As there was no evidence before the jury that the horse “ran into any other ■ object,” and as the evidence was uncontroverted that it ran into the trestle, the addition could not possibly prejudice the defendant. Judgment affirmed. All concur.