Moon v. Missouri Pacific Railway Co.

83 Mo. App. 458, 1900 Mo. App. LEXIS 195

• Court: Missouri Court of Appeals
• Decided: March 5, 1900
• Status: Published

Opinion

ELLISON, J.

Plaintiff sued defendant for killing two of his cows by running against them with a train of cars. He recovered double damages on the ground that the cattle got upon the track and were killed where the road was not fenced and where, by law, it was defendant’s duty to fence.

It is objected that the evidence fails to show the cows were killed in Morgan county. We think the only reasonable inference to draw from the testimony of witness Akin is that the lulling was in Morgan county. Besides, it was shown to be near Akinsville, and the section, township and range are shown. We will take judicial notice that these are in Morgan county. State v. Pennington, 124 Mo. 391.

It is contended that the evidence fails to show that the cows belonged to plaintiff, or that they got on the right of way where defendant was bound to fence. The record fails to bear out either of these contentions. The facts mentioned are clearly shown.

It is also suggested that the evidence shows the animals went upon the right of way at a public crossing, while the petition states that they did not. The suggestion is not well founded. The petition alleges that the point where they got upon the road was not at a public crossing. And this was shown, to be true. They got on the right of way at a public crossing, but wandered down from that fifty or sixty feet where they went onto the railroad proper. Defendant has confounded the right of way with the track.

The instructions offered by defendant were properly refused. The petition is-substantially good and objection to evidence under it was properly overruled. The judgment is affirmed.

All concur.