Cooper v. Atchison, Topeka & Santa Fe Railroad

39 Mo. App. 489, 1890 Mo. App. LEXIS 106

• Court: Missouri Court of Appeals
• Decided: February 17, 1890
• Status: Published

Opinion

Gill, J.

Upon a careful examination of the record in this cause, we discover no reason whatever for disturbing the judgment of the circuit court. Defendant’s counsel, in his brief, makes some complaint as to instructions, yet the only point of substance is one fully met and provided for by the instructions given. He insists that the jury should have been told, in the words of an instruction asked, but réfused, that “the mere fact that the gate in question was not hung or provided with latches or. hooks, and that plaintiff’s animal escaped through such gate and was killed, does not, of itself,' make this defendant liable,” for the reason, it is claimed, that the jury should have been instructed that this failure to provide the gate with latches or hooks must have occasioned the damage, etc. And so the court did instruct the jury in instructions, numbered here for convenience 1 and 2. It is made a distinct condition of recovery “that said horse got upon said track and was killed by reason of the failure and neglect of the said railroad company to erect and maintain a gate having a latch or hook,” etc., as set out in the closing sentence of instruction number 1, or “that the killing of plaintiff’s horse was occasioned by such failure to have the gate hung and provided with latches or hooks,” as declared in number 3, quoted in the foregoing statement of the case.

Indeed, the court very clearly instructed the jury as to every feature of the case, whether relating to the cause of the plaintiff or for the defense. There was ample evidence, too, tending to show that this defendant was operating the road which runs through plaintiff’s farm, and that its engine and cars killed the horse.

The judgment of the circuit court is affirmed.

All concur.