Home/Missouri Court of Appeals/Corcoran v. Wabash Railroad

Corcoran v. Wabash Railroad

122 S.W. 743, 138 Mo. App. 408, 1909 Mo. App. LEXIS 403
CourtMissouri Court of Appeals
DecidedNovember 1, 1909
StatusPublished
Cited by2 cases

This text of 122 S.W. 743 (Corcoran v. Wabash Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corcoran v. Wabash Railroad, 122 S.W. 743, 138 Mo. App. 408, 1909 Mo. App. LEXIS 403 (Mo. Ct. App. 1909).

Opinion

JOHNSON, J.

— A stallion and two fillies owned by plaintiff strayed to defendant’s railroad track at a point near the incorporated town of Clyde and were killed by a passing train. Plaintiff brought this suit' to recover single damages for the killing of the animals. The cause was tried to a jury resulting in a verdict and judgment for plaintiff. Afterward the court sustained defendant’s motion for a new trial on the grounds: First. That the petition is insufficient to sustain a judgment. Second. That while there was [411]*411evidence tending to prove the recitals of alleged facts in plaintiff’s instructions numbered one, two and three, each of said instructions erroneously declare the law applicable to the alleged facts therein recited.” Dissatisfied with this ruling, plaintiff brought the case here by appeal. The evidence is not in the record before us and the facts we must consider in the determination of the questions of law argued in the briefs are to be gleaned from the petition and the instructions mentioned in the order granting a new trial.

The petition is as follows: Plaintiff for his second cause of action states that on May 13, 1906, defendant was and now is a corporation running and operating a railroad through Nodaway county, State of Missouri, and by and through a station designated Clyde on its said railroad in said county; that adjoining its depot grounds at said station to the west thereof and on the north side of its track or roadbed, defendant maintained a scope of right of way one hundred and fifty feet by two hundred feet, unused by defendant and unfenced, forming a pocket or cul-de-sac, and at date herein complained of, was overgrown with succulent grasses, inviting to live stock, to graze thereon. That on said date, in said county, in close proximity to said station of Clyde, plaintiff was the owner of certain live stock, to-wit: One iron gray stallion, two years old, two more colts one year old, commonly called “fillies,” said stallion of the value of three hundred dollars and said fillies of the value of one hundred dollars each.

That on said date said stallion and fillies strayed and went in and upon the right of way grounds and railroad track of defendant, at a point immediately west of said station on the one hundred and fifty by two hundred feet of unfenced right of way described aforesaid, and from thence on to the unfenced track of defendant at said point and place, and were struck by a locomotive and train of cars, then and there run and operated by defendant, killing one of said fillies [412]*412outright and so injuring and maiming the said stallion that he died soon thereafter, and did cripple and injure the other filly so as to render her wholly worthless and valueless to plaintiff. And that defendant might have fenced and should have fenced the space of right of way aforesaid so as to prevent horses and other live stock from going thereon, but had negligently failed to do so. That said portion of said right of way and track was not within the limits of any incorporated or platted town or village and not within necessary switch limits. That wholly by reason of said right of way being unfenced, said stock (stallion and fillies) did go thereon, and from thence on to the track of defendant, and were injured and killed as aforesaid to plaintiff’s damage in the value of the animals aforesaid, to-wit, the sum of five hundred dollars.

Wherefore he prays judgment for said sum of five hundred dollars and costs of suit therefor.”

The three instructions given at the request of plaintiff and afterward pronounced to be erroneous in the order granting a new trial are as follows:

“1. The court instructs the jury that, though you may believe from the evidence that plaintiff’s horses were killed or injured within the switch limits of defendant’s station of Clyde and that said switch limits were not in excess of such reasonable length as to enable defendant to conveniently carry on its business at said station, yet you are instructed that, beyond the necessary station or depot grounds at said station, the defendant was required to fence its right of way on the sides of its lines of track so near to its line of track as not to interfere with its employees or endanger their, safety in making switches and handling its trains, provided same is outside of the corporate limits of said station and not intersected by any platted streets or public crossing; and if you find from the evidence that, beyond the limits of reasonably necessary depot or station ground at said station, and outside of the cor[413]*413porate line or limit, there extended a strip of right of way about one hundred and fifty feet wide parallel with said track on the north side thereof to the west switch limit or cattle-guard a distance of about two hundred feet and that the same including the track was unfenced and open, and said strip was not reasonably necessary for use in connection with its switch limits ns aforesaid, and that said strip of right of way formed an inviting pasturage for stock on May 13, 1906, and that plaintiff’s horses entered on such unfenced right of way at said date and from thence onto defendant’s track, and were killed and injured, you will find for plaintiff and assess his damages at the value of the animals killed or injured, as you may believe from the evidence they were reasonably worth at the time, the ones killed at their reasonable value, and the one injured to the extent of the injury, not to exceed $300 for the stallion and $100 for the filly killed, and not to exceed $50 for the filly injured, not to exceed the total value of $450.

2. The court instructs the jury that defendant is not required to fence its track within reasonable switch limits at a station on its line of railroad, or to fence its right of way so close to said tracks as to endanger the safety of its employees in handling its trains and transacting the lawful business of the company at a station; but is not permitted to leave open right of way ground on the sides of its track that are unused and unnecessary for the purposes aforesaid, and if you find from the evidence in this case that defendant did leave unfenced right of way ground at the point complained of, that was not used or necessary for the purposes aforesaid and that solely by reason of such unfenced right of way grounds, plaintiff’s horses strayed or entered thereon and from thence onto defendant’s track and were killed or injured, you will find for plaintiff in such sum as you may find from the evidence to be the value of such horses as were killed and any [414]*414injured to the extent of the injury, not to exceed the total value of $450.

3.

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Cite This Page — Counsel Stack

Bluebook (online)
122 S.W. 743, 138 Mo. App. 408, 1909 Mo. App. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corcoran-v-wabash-railroad-moctapp-1909.