Riley v. St. Louis Southwestern Railway Co.

BOND, J. The question of the sufficiency of the petition [378] to state a cause of action is not before us for review, since it was held free from that objection on a former appeal. It is insisted by the learned counsel for appellant that the proof does not support the charge in the petition; that the cattle were killed by being frightened by defendant’s engine, and driven into the cattle guard and thence thrown from the track and killed. There was sufficient proof that the killing occurred at the cattle guard. There was also evidence tending to show the existence of inclosures on either side of the approach to this cattle guard, for a long distance, made by the connection of farm fences with the fences of the defendant. It was a question for the jury, whether or not defendant only appropriated a reasonable portion of its track and right of way to switching purposes. Prather v. R’y Co., 84 Mo. App. loc. cit. 92. In the case at bar, if it exceeded the limits of a reasonable use of its track for this purpose and permitted said fences for an excessive distance to be connected with its own fences, thus creating a blind inclosure wherein errant cattle, following their natural disposition, might become alarmed at approaching trains and frightened into cattle guards and there killed, it could not be said, as a matter of law, that no cause of action existed for injuries thus occasioned, against the defendant. This question seems to have been resolved against the defendant on the trial, and although the evidence in favor of the verdict of the jury was purely inferential, we are not authorized for that reason to set aside the finding. It is conceded that the instructions given by the court (except its refusal of a demurrer to the evidence) were correct. The judgment herein is, therefore, affirmed. All concur.