Payne v. Current River Railroad

Bond, J. — This suit was begun before a justice for double damages for the injuries to a cow caused by the engine of defendant’s train. Plaintiff appealed from a judgment in his favor to the circuit court, where the cause was tried de novo and plaintiff had judgment for $15, from which defendant appealed. The first complaint is that the notice of appeal was addressed to the attorney of the defendant and not to the defendant itself. It is conceded that the notice was properly served under the statute authorizing service upon the attorney. R. S. 1889, sec. 6342. There is no merit in this assignment of error. The record shows that defendant appeared on the trial of the cause in the circuit court, took part therein by introducing evidence and submitting the issues by instructions. This gave the court jurisdiction of the person of defendant and was a complete waiver of the informality in the notice of appeal, even if it had been material (which is not decided). [17] The next point insisted upon is the alleged insufficiency of the evidence to support the finding. Several witnesses testified that the cow was injured by the collision with defendant’s train to the extent of $20 or $25. It is true that the written statements of some of the witnesses taken by defendant’s attorney and introduced in evidence contained itemizations of the damage to the cow, ascribing some of it to “loss of milk and butter,” and “for care and keep,” but the court, at defendant’s request, excluded all these elements from the consideration of'the jury, and the record shows that there was ample evidence, aside from these specifications of damage, to su'stain the verdict of the jury as to the difference in value of the cow before and after being sti'uck by defendant’s train. It is complained lastly that there is no evidence that the cow was lawfully in the field through which the railroad ran, and hence, conceding that its roadway was unfenced, plaintiff could not recover without showing that there were no fences on the three other sides of the field. The evidence does not sustain this contention. It was sufficient to make it the duty of defendant tofence the roadway, as against plaintiff’s cow, that the animal was in the adjoining field by the consent, express or implied, of the owner of the land. Smith v. R’y, 25 Mo. App. loc. cit. 115. The evidence of Brotherton, the owner of the, field through which defendant's unfenced roadway ran, showed that the cow was “runningin his (Brotherton’s) pasture,” with his, Brotherton’s, knowledge and consent. This was enough to entitle plaintiff to rely upon the statutory obligation of the defendant to fence its track, and the instruction of the court submitting these issues was correct. The judgment is affirmed. All concur.