Jackson v. St. Louis, Iron Mountain & Southern Railway Co. , 36 Mo. App. 170 ( 1889 )

Thompson, J.,

delivered the opinion of the court.

This suit was commenced before a justice of the peace to recover double damages, under section 809, Revised Statutes, for mangling and injuring a steer, belonging to the plaintiff, so as to render it worthless. On trial anew in the circuit court, the plaintiff offered evidence tending to support the allegations of his statement, which it is admitted was drawn in conformity with the statute; the defen dant offered no evidence; the plaintiff recovered a verdict in the sum of forty dollars; and the court, doubling the damages, under the statute rendered a judgment in his favor for eighty dollars. The defendant appeals to this court and assigns the following errors :

(1) That the evidence totally fails to justify the verdict. This assignment of errors proceeds upon the ground that there was no substantial evidence tending to show that the steer had been struck by an engine or cars of the defendant. The evidence was about as strong as circumstantial evidence could be. The plaintiff turned the steer loose to graze, on the evening before the accident, on the east side of the defendant’s railway track. On that side the track was not fenced, but the place was open country, and the place was such that, under the law, the defendant was required to keep it fenced. There was no town or village there, and no highway crossing within a considerable distance of where the marks indicated that the accident to the animal had happened. There was an' abandoned switch which had run to a mill, but both the switch and the mill had been long since disused. The evidence tended to show that the steer was found, on the following morning, fifteen or twenty feet from the defendant’s track, very badly bruised, its shoulder and hip mashed in, its entrails protruding through the muscular abdominal covering against the skin so as to form a knot or bunch. The steer had been used as a draft animal and was rendered worthless to the plaintiff, and the plaintiff abandoned it. It was cared for, for a time, by a neighbor of the plaintiff, who directed his children to carry it food and water ; but after two or three months it died. Near where the steer was thus found on the side of the track, blood and hair were found, indicating that the steer had been dragged or shoved along by a passing train. This was sufficient evidence to take the case to the jury. The further point that it does not satisfactorily appear, from the evidence, that the point where the steer was found was a point where the railway company was required to fence its track, is also disposed of by what has been said.

(2) The point that the evidence shows that the steer lived for two or three months after the alleged injuries, and was abandoned by the plaintiff to die of its injuries without care or attention, is answered by saying that no instruction was asked touching this feature of the case. The plaintiff’s evidence tended to show that the steer was rendered substantially worthless for any purpose except perhaps for its hide and tallow. A party suffering an injury is bound thereafter to take reasonable steps to mitigate the damages, before he can charge them on the party doing the wrong, but, as no evidence was offered by the defendant tending to show to what extent, if any, the damages could have been mitigated by the plaintiff, and as this theory does not seem to have been presented to the court below by the defendant, in any form, it affords no ground for reversing the judgment.

The judgment- will be affirmed.

All the judges concur.