Logan v. St. Louis, Memphis & Southeastern Railway Co.

86 S.W. 565, 111 Mo. App. 674, 1905 Mo. App. LEXIS 541

• Court: Missouri Court of Appeals
• Decided: April 4, 1905
• Status: Published

Opinion

NORTONI, J.

(after stating the facts). — Section 1105, R. S. 1899, under which this action was instituted, contemplates an actual collision.between the locomotive or train and the animals injured. There must be some evidence, either direct or circumstantial, to this end. Gilbert v. Railway, 23 Mo. App. 65; Lindsay v. Railway, 36 Mo. App. 51. In this record there is no evidence, either direct or circumstantial, tending to show a collision between a locomotive or cars of appellant, and the respondent’s animals alleged to have been injured in the first and third-counts of the petition, nor is there anything in the evidence from which the inference could be drawn that there was an injury so inflicted. In the first count, the evidence that the heifer was found buried near the railroad, evidently some days after its injury and death, in the total absence of evidence that a train had recently passed over the road at that point or that the heifer had been seen upon the track or other circumstances tending to connect appellant with the injury, certainly cannot support a verdict against appellant for the injury. To hold it sufficient would be equivalent to holding appellant liable for the death of the heifer forno other reason than that appellant had failed to construct its fences and cattle guards as required by the statutes even though no train had been operated on its road. The same is true as to the injury to the steer sued for on the third count. The mere fact that it Avas discovered some one hundred and utAventy-five to one hundred and seventy-five yards from the track with its leg broken, Avhich appeared in the witness’ judgment to have been done a couple of days before by a train, in the absence of evidence showing the steer had been upon the railroad track or that trains had some time theretofore passed over the road at that point,' is Avholly insufficient to sustain a finding thereon. There are no circumstances connecting the injury complained of in either the first or third counts with the appellant’s locomotives or trains. “The basis of circumstantial evidence is the knoAvn and experienced connection subsisting between the collateral facts proved and the fact in controversy.” 1 Greenleaf on Evidence, sec. 11; Perkins v. Railway, 103 Mo. 52, 15 S. W. 320; Shaw v. Railway, 110 Mo. App. 561, 85 S. W. Rep. 611. Had there been proof that trains were being operated over this road at the time and'place of the injury, and that the animals were either seen upon the track or upon the right of Avay or that cattle tracks or other evidence or marks of their presence on the track or right of way had been seen or the sounding of a stock alarm had been heard, these would have constituted collateral facts from which the jury might have reasonably-inferred the principal fact of the injury to the stock alleged, by the passing trains. But unfortunately for respondent, no such proof is in the record. Gilbert v. Railway, 23 Mo. App. 65; Lindsay v. Railway, 36 Mo. App. 51; Perkins v. Railway, 103 Mo. 52; Shaw v. Railway, supra.

It was error in the circuit court to submit the first and third counts to the jury. The two peremptory instructions requested by appellant on the first and third counts should have been given. The peremptory instructions requested by appellant on the second and fourth counts were properly refused by the court. There is substantial evidence to sustain the findings of the jury on the two last mentioned counts. The judgment will therefore be reversed as to the first and third counts and affirmed as to the recovery on the second and fourth counts in the petition. It is so ordered.

All concur.