Maberry v. Missouri Pacific Railway Co. , 83 Mo. 664 ( 1884 )

Martin, C.

This is an action for the killing of two oxen and one cow belonging to plaintiff. No objection is raised to the jurisdiction of the justice or to the sufficiency of the statement.

I.' In the trial in the circuit court the evidence tended to prove that the cattle were traced by their tracks to the point on the railroad at which they were killed, and that the fence was not sufficient to turn stock at the point at which they entered upon the railroad way; and that such point was not at a public crossing or inside of a city or town. The evidence of witness, Wunderlich, to the effect that the fence for half a mile up and down the road at the place of killing was defective, was competent. His statement that the fence was defective, also, on the north side two or three hundred yards from the place of killing was also competent. Jantzen v. R. R., ante, p. 171.

II. There was no error in refusing to exclude the evidence of the same witness relating to the value of the cattle. ■ He testified they were worth about $140. On cross-examination, he admitted that he had appraised them at about $100, soon after the accident when he supposed they would be paid for without suit. This admission of the witness on cross-examination was no ground for excluding his testimony. It had to go to the jury for what it was worth. The jury found the valuation at $140, and there is no good reason for setting it aside in the appellate court.

III. Under section 2936 the plaintiff ought not to have recovered costs incurred before the justice, having brought and prosecuted to judgment a suit before the same magistrate against the same defendant, in which suit he ought to have included the present cause of action. Having obtained judgments in both suits before the magistrate, he is entitled under the statute to costs in only one. The judgment should be so modified as to correct this error. With this correction as to the taxation of costs, the judgment is affirmed.' Costs in this and in the circuit court to be adjudged against respondent.

DeArmond, C., concurs. Ewing, C., not sitting.