Keltenbaugh v. St. Louis, Arkansas & Texas Railway Co.

Biggs, J., delivered the opinion of the court. This action was begun before a justice of the peace in Tywappity township, Mississippi county, under section 809, Revised Statutes, 1879, to recover double damages for killing a steer on defendant’s railway. There was judgment before the justice for plaintiff, and on appeal to the circuit court, the cause was submitted to the judge sitting as a jury, which resulted in a judgment for sixty dollars, double damages, in favor of plaintiff. No instructions were asked or given. [150] Defendant contends that the judgment cannot be sustained for the following reasons : (1) Because the court, during the trial of the cause, permitted plaintiff to insert by way of amendment an averment in his complaint that Tywappity township was adjoining to Union township. The evidence tended to prove that the steer had been injured or killed in Union township in said county. (2) That the court, after the amendment, should have granted defendant a continuance. (3) That there was no evidence of a collision, and that there was no proof that defendant at that time was operating said railroad. We will notice these objections in the order stated. I. The averment that Tywappity township, where the suit was brought, was an adjoining township to Union township, where plaintiff’s steer was killed, was a jurisdictional fact. But that this amendment could be made after appeal to the circuit court is no longer an open question in this state. The statute (sec. 3060), and the case of Mitchell v. Railway, 82 Mo. 106, settle this question beyond dispute. II. When the amendment was made, defendant’s counsel asked for a continuance, on account thereof, which the court refused. Section 3597, Revised Statutes, is as follows: ‘ ‘ When a party shall amend any pleading, and the court shall be satisfied by affidavit or otherwise that the opposite party could not be ready for trial in consequence thereof, a continuance may be granted to some day of the same term, or to the next regular term of the court.” The question of continuances rests within the sound discretion of the trial courts, and unless it clearly appears that this discretion has been abused, the appellate court will not interfere. State v. Sayers, 58 Mo. 585; Barthlow v. Campbell, 56 Mo. 117. The amendment made by plaintiff to his complaint [151] did not of itself entitle defendant to a continuance» There was no affidavit filed by defendant, and no proof of any character tending to show to the court that the-defendant was taken by surprise by the amendment ;: that it was not ready for trial, and that defendant’» inability to try the case arose from the amendment. Nor did defendant show that it had a meritorious defense to plaintiff’s claim for damages. We think it was necessary for defendant to have shown all of these-facts in order to have entitled him to a continuance-under said section 3597. Colhoun v. Crawford, 59 Mo. 458. III. Counsel for defendant says there was n©> evidence of a collision, and there was no proof that defendant at the time was operating the St. Louis, Arkansas & Texas railroad. In order to recover under section 809 for the killing: of stock, there must be some proof of actual collision. The evidence on this subject in this case was that the animal was found in a badly crippled condition on the side of the dump of the St. Louis, Arkansas & Texas railroad. That the animal had one horn knocked off, two or three legs broken, and was so badly injured that it could not walk and had to be killed. It was also in evidence that hair, the color of that of the steer, was found on the ends of the ties opposite where the animal was found. Positive proof is not required to establish a collision in cases of this character, but the fact may be inferred from fact» and circumstances developed by the evidence. Halferty v. Railroad, 82 Mo. 90; Blewett v. Railway, 72 Mo. 583. This ruling is reasonable and right. To hold ■otherwise would, in' many cases, amount to an absolute denial of justice. We think there was evidence tending to prove that, at the time plaintiff’s steer was killed, trains were running on the St. Louis, Arkansas & Texas railroad, and that the trial court was fully justified' in so finding. [152] All of the witnesses speak of the railroad, where the animal was found, as “The St. Louis, Arkansas & Texas railroad.” While there was no direct proof that at the time of the accident, trains were being run on the road, yet the record shows that the case was tried by both plaintiff and defendant on the assumption that trains were being run on said road. The witnesses all speak of trains in connection with the accident and the railroad. The plaintiff said “that the animal was knocked off the track by the train." He was asked on cross-examination if he saw the train strike the animal. He said that he did not, but the fair inference from his testimony is that he heard the train pass, as he was near the railroad at the time. Another witness said, “ I did not see the train strike the animal, but I was there a very short time afterwards.” The cross-examination of the plaintiff’s witnesses by defendant’s counsel indicates that the fact that trains-were being run on said road was a conceded fact. This makes a different case from Gilbert v. Railway, 23 Mo. App. 65, cited and relied on by defendant’s counsel. In th& Gilbert case the court decided that there was no testimony that any trains were being run on said road. The only remaining question in the case is, was there any testimony tending to prove that the defendant corporation was the owner of the St. Louis, Arkansas & Texas railroad. If so, then prima facie the road was operated by defendant. It is true that there was no direct or positive testimony that the defendant corporation was, at the time of the accident, the owner of the St. Louis, Arkansas & Texas railroad. But plenary proof of this fact could hardly be expected or required of plaintiff. The law would only require of him to introduce some testimony which would, in the absence of countervailing proof, raise the presumption thát defendant was owner of said railroad. The defendant appeared to the action, [153] defended under the name of the St. Louis, Arkansas & Texas Railway Company, and made no objection to plaintiff’s testimony that plaintiff’s animal was injured on the St. Louis, Arkansas & Texas railroad. It. seems to have been a conceded fact that defendant at the time was the owner of said railroad. Defendant introduced no proof on the subject to the contrary. In the absence of any countervailing evidence, we think that the trial court did right in finding that the St. Louis, Arkansas & Texas Railway Company was the owner of the St. Louis, Arkansas & Texas railroad. Finding no substantial error in the record, the judgment, with the concurrence of the other judges, will be affirmed.