Smith v. Chicago & Alton Railway Co.

BLAND, P. J. (after stating the facts).—1. At the threshold of the case defendant objected to the introduction of any evidence, on the ‘ground that the petition failed to state any cause of action. The petition contains all the allegations essential to plaintiff’s right to recover, and follows the language of the statute upon which the action is bottomed, therefore, no error was committed by the trial court in overruling the objection. 2. It is alleged in the petition, that the horses and mules went upon the railroad where it “passed through, along and adjoining inclosed and cultivated fields and lands.” Prom this allegation, the inference should be drawn, or the presumption indulged, that the fields and lands were inclosed by a lawful fence. [Harrington v. Railroad, 71 Mo. 384; Seidel v. Railroad, 109 Mo. App. 160, 83 S. W. 77.] And it is contended by defendant that the evidence offered by plaintiff tending to show the partition fence separating the pasture from the cornfield, contradicted the allegations of the petition in re — 165 — gard to the inclosure, and should have been rejected. The ground of the objection was, “there is no allegation in the petition with reference to the fence between the pasture and the cornfield,” not that the evidence tended to contradict a presumption of fact arising from the allegations of the petition. It was not essential to the admissibility of the evidence, that the defect in the partition fence should have been specifically stated in the petition, hence the court did not err in refusing to sustain the objection on the ground stated and relied on by defendant at the trial. It is the well-established rule of practice in the appellate courts of this State, that objections to evidence must be certain to entitle the par* ty making them to have the question reviewed (Kansas City v. Scarritt, 169 Mo. 488, 69 S. W. 283), and unless they are certain they amount to no objection at all. [Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, 76 S. W. 987.] Nor can a party on appeal raise a specific objection to the admission of evidence which he did not interpose at the trial, therefore the error relied on here in respect to the admission of evidence is not reviewable. 3. Plaintiff’s evidence shows that his animals escaped from his pasture, through or over a defective fence, into Ray’s cornfield, thence through a gap in the railroad fence on to the railroad. Upon these facts defendant contends it is not liable to plaintiff for the damages sustained on account of the injuries to his stock, and insists that section 1105, Revised Statutes 1899, is intended only for the protection of the adjoining proprietor, and not for owners of animals that are unlawfully upon adjoining inclosures. This contention is supported by the case of Ferris v. Railway, 30 Mo. App'. 122. The Ferris case is not in harmony with the rulings of the-Supreme Court in Stanley v. Railway, 84 Mo. 631; Kingsbury v. Railway, 156 Mo. 388, 57 S. W. 547; Darby v. Railway, Ib. 391, 57 S. W. 550, and is expressly. — 166 — overruled in the case of Rinehart v. Railway, 102 S. W. (Mo.) 958, where it is held that the fact the animal injured came upon the railroad through or over a defective railroad fence, from premises upon which it was a trespasser, does not relieve the railroad company from liability'under the provisions of section 1105, supra. 4. Defendant, for the purpose of showing the fence between plaintiff’s pasture and Ray’s cornfield was a lawful one, showed that Audrain county had adopted the law prohibiting swine from running at large, and that the fence was composed of three wires on posts, set sixteen feet apart. The statute (sec. 3295, R. S. 1899) provides that in any county in which swine are restrained from running at large, a wire fence composed of three barbed wires, tensely stretched on posts, firmly set in the ground not more than sixteen feet apart, shall be a lawful fence. Plaintiff’s evidence is that in places in the fence the posts were rotten, and the horses got into the cornfield through the fence where the posts were rotted off. If this be true, then the fence was not a lawful one, and defendant is not relieved of liability on account of the animals going upon the railroad track from Ray’s cornfield, where they had no right to be. It is further contended by defendant, that there is no evidence that it knew the gap had been made in the fence, or that the gap had existed for a sufficient length of time to warrant an inference that it knew of its existence, and had had time to repair it. Defendant’s employees, working on the section, testified the gap was made seven or eight days before the accident, and that when working on the section they passed it and saw it, in fact, the uncontradicted evidence is that the son of the section boss made the gap for the purpose of hauling out old ties from the railroad right of way. This evidence leaves no room to doubt that defendant’s servants and agents knew of the existence of the gap and, in fact, tends to show it was made with the knowledge and consent of the section — 167 — boss. Therefore, plaintiff’s evidence tended to prove every fact essential to his right of recovery and there was no error in refusing defendant’s instruction in the nature of a demurrer to the evidence. 5. Defendant asked the following instructions: “2. The court instructs the jury that the burden is upon the plaintiff and remains with the plaintiff throughout this case to prove to your reasonable satisfaction that the injuries, if any, to the horses and mules in question, occurred solely by being actually struck by one of defendant’s railroad trains; and if you believe from the evidence, that some of the injuries complained of to the horses and mules in question, may have occurred from another cause as well as from being actually struck by one of defendant’s railroad trains, then you should resolve such doubt in favor of the defendant railway company, and must not allow plaintiff any damages in this case for such injuries.” The court modified the instruction and gave it in the following form: “The court instructs the jury that the burden is upon the plaintiff and remains with the plaintiff throughout this case to prove to your reasonable satisfaction that the injuries, if any, to the horses and mules in question, occurred solely by being actually struck by one of defendant’s railroad trains; and unless you so find from the evidence the plaintiff is not entitled to recover.” Defendant insists that the instruction should have been given as asked. One of the animals had'a scratch on its nose, which some of the witnesses testified' “looked like it might have been made by a barbed wire.” This injury, however, was insignificant. The animal was skinned and bruised on other parts of its body, and its injuries, as well as the injuries to the other animals, described by the witnesses, indicated they had been made by violent external means, and there is no - evidence showing or tending to show that any of the injuries, exr — 168 — cept the scratch on the nose, were caused in any other manner than by probable contact with defendant’s locomotive and train of cars. On account of the nose scratch, the instruction should, have been given as asked, but this injury was so insignificant and inconsequential that it is not likely the jury took it into consideration in estimating the damages, and for this reason the error in modifying the instruction was harmless. 6. Defendant asked the following instruction, which the court refused: “7. The court instructs the jury that if you believe from the evidence any of plaintiff’s horses in question, that is now living, was injured at the time in question by being actually struck by a railroad train, as to such horses you can allow damages only in such sum as you believe from the evidence the present value of such horse is depreciated, if at all, by such injury, if any, so received.” All the evidence tends to show the injuries to all the animals not killed were permanent. In Cunningham v. Dickerson, 104 Mo. App. l. c. 413, 79 S. W. 492, we said: “When property is not entirely lost or destroyed but only impaired in value, the measure of damages is the difference between the value before the injury and immediately thereafter and the reasonable expense incurred or value of time spent in reasonable endeavor to preserve or restore the property injured. [1 Field on Damages, p. 621; Dietrich v. Railway, 89 Mo. App. 36; Hoffman v. Railway, 51 Mo. App. 273.]” Expense incurred and value of time spent in curing the injured animals are ignored by the instruction; for these reasons it was properly refused. 7. It is finally contended that the damages are excessive. This contention is not borne out by the evidence of the plaintiff'; on the contrary his evidence tends to show his actual 'damages were considerably in excess of the sum assessed by the jury. No reversible — 169 — error appearing in tbe record, tbe judgment is affirmed. All concur.