Straub v. Eddy , 47 Mo. App. 189 ( 1891 )

Smith, P. J.

This was an action brought by plaintiff against the defendants, receivers, operating the-Missouri, Kansas & Texas Railway Company, for the-recovery of damages for injuries to a mare and colt. The-petition contained two counts, one based on section 2611, and the other on section 2124, Revised Statutes. The plaintiff had judgment on the second count of the petition from which defendants have appealed. Defendants-assail, the judgment on a number of grounds which we shall now proceed to examine in the order of their assignment.

I. The defendants contend that the plaintiff erroneously combined two inconsistent and contradictory-counts for the same injury in their petition, and that, therefore, the circuit court committed error in refusing-to require him to elect on which of these he would proceed to trial. The two counts of the petition claim damages for but one and the same injury. They contain but one subject-matter of complaint, the injury to-the plaintiff’s mare and colt, and, therefore, but one cause of action, although stated in different ways to meet the evidence. Though each count is based on different statutes, there is but one injury and one action, not two subjects of complaint, but two different statements for the same injury. This is allowable. Lincoln v. Railroad, 75 Mo. 27; Brownell v. Railroad, 47 Mo. 239; Brinkman v. Hunter, 73 Mo. 172; St. Louis Gas Co. v. St. Louis, 86 Mo. 495; Rainy v. Baker, 48 Mo. 539; Lancaster v. Ins. Co., 92 Mo. 460; Newton v. Miller, 49 Mo. 298; Brady v. Connell, 52 Mo. 19; Bliss, Code Pl., sec. 120. The statement of the injury in the counts of the petition not being contradictory nor inconsistent, there was no error in the action of the court in refusing to compel the plaintiff to elect on which count, he would proceed. He had the right to go to the jury on both counts. Lincoln v. Railroad, supra; Brinkman v. Hunter, supra.

II. In view of the. fact that the jury found for the defendant on the first count of the petition, it becomes, unnecessary to examine the evidence for the purpose of' determining whether the court erred in refusing to sustain the defendant’s demurrer to the evidence or in giving instructions thereon, or in submitting the issue-therein to the jury. Cory v. Railroad, 60 Mo. 209.

III. The defendants further centention is, that the mare and colt strayed upon the defendant’s right of way and track within the station limits of the village of Harrisfon, and within the switch limits of the station, and that at that point the defendants could not have ■fenced, and hence the court erred in refusing the ■demurrer to the evidence, and in submitting the issues under the second count. It was a question of fact to be ■determined by the jury from all the evidence, whether the point where the plaintiff’s animals strayed upon the defendant’s railway track was not only within the claimed station grounds and switch limits, but also whether the point was necessary for the company’s use in conveniently and safely transacting its business and the accommodation of the public transacting business at the station. The defendants could not arbitrarily determine for themselves the question of the necessity for the space they claim for their station grounds and ■■switch limits and where they should build cattle-guards. 'This was a matter of discretion,- the reasonableness of •which is the subject of review by the courts. It was the duty of the trial court to submit to the jury the -question of the necessity of the ground in question for the defendants’ use. Johnson v. Railroad, 27 Mo. App. 379; Russell v. Railroad, 26 Mo. App. 368.

We cannot say there was no evidence adduced, the • Tendency of which was to show that defendants may mot have fenced their road wdiere the plaintiff’s ani-rnals strayed upon their railway track, without causing inconvenience either to the agents, servants and employes of defendant, or to those who might have occasion to transact business with, defendant’s railway, .or the public at said point. No part of the road ran Through the village of Harriston, as appears from the ■plat contained in the bill of exceptions. It appears That the defendant’s track abuts against the western ¡boundary of the village, and that there is one hundred feet of ground intervening. The village is east of the ■defendant’s road, and its location is entirely immaterial for the purpose of determining the right of the parties to this action. The station and switch limits must be considered as though the village was not there, or as if it were a hundred yards instead of a hundred feet away from the line of the defendant’s roadway. The switch was shown to be thirteen hundred feet long. The necessity for its maintenance is hardly apparent, for the undisputed evidence is that it was seldom used,, for the reason there were very few cars loaded there. Hence, in determining the question whether it was necessary that defendants should have left their railway track unfenced at the point where plaintiff’s animals strayed upon the track, it is proper to submit to the jury, for its consideration, the nature and situation of the place, its distance from the depot, and the relation of the place to its surroundings and the use made .of that part of the road by the defendants and the public. The court very .properly overruled the demurrer to the-evidence under the second count.

IY. The plaintiff’s first instruction, which was-drawn under the first count, need not be considered, since the jury, as has been already remarked, found for the defendant on that count. And, as to his second, we think it very fairly declares, the rule applicable to the evidence under the section of the statute on which the second count was based. It directed the jury, among other things, that, if the defendant could have fenced their railroad at the point where the plaintiff’s; animals came upon the track without causing inconvenience either to the servants, agents and employes of defendant or to those who might have occasion to transact business with defendants, and without unnecessarily increasing the hazard of life and limb of the defendant’s, trainmen in the necessary discharge of their duties and work in operating their said road, and it was necessary for the public and the defendant that said railroad at such point should be left open and unfenced, then their verdict should be for plaintiff. The objection that this instruction omits to mention the “depot grounds and switch limits,” in the exception, is without force. This was unnecessary under the broad and comprehensive language of the exception; besides, the defendant’s instructions are subject to a like fault, if it be a fault.

The plaintiff’s third instruction was approved in Jennings v. Railroad, 37 Mo. App. 651, which in many respects was a case similar to this.

Y. The first and second instructions given for defendants are substantially the same as the fifth and sixth, which were refused, so that there seems to be no ground of complaint based on the action of the court in refusing instructions.

We do not believe that there has been any error committed by the circuit court against the defendants materially affecting the merits of the action, so that it Jesuits that the judgment must be affirmed.

All concur.