Schlotzhauer v. Missouri, Kansas & Texas Railway Co.
Missouri Court of Appeals
Appeal from Cooper Circuit Court. — lion. T. B. Robinson, Judge. (1) The court erred in refusing to sustain the demurrer at the close of the plaintiff’s evidence. Also in refusing to give the peremptory instruction to find for the defendant at the close of all the evidence, because there was no evidence in the case sufficient to justify the conclusion that the plaintiffs mule entered upon the right of way by passing through or over the fence. Walton v. Railroad, 32 Mo.
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Appeal from Cooper Circuit Court. — lion. T. B. Robinson, Judge. (1) The court erred in refusing to sustain the demurrer at the close of the plaintiff’s evidence. Also in refusing to give the peremptory instruction to find for the defendant at the close of all the evidence, because there was no evidence in the case sufficient to justify the conclusion that the plaintiffs mule entered upon the right of way by passing through or over the fence. Walton v. Railroad, 32 Mo. App. 634. (2) The plaintiff’s instructions were a comment upon the evidence, and assumed as true, controverted matters, in…
1Opinion of the Court
BROADDUS, I.
This is an action to recover double damages on áccount of the killing of plaintiff’s mule on defendant’s railroad in the county of Cooper. The allegations of the petition are, that the fence between the defendant’s right of way and a public road was, and had been for a long time, in a defective condition, and that by reason thereof the mule in question entered upon the defendant’s railroad at that place and was killed. The answer was a general denial.
The evidence disclosed the fact that the mule was killed on the defendant’s track at a place where defendant’s railroad passed…
2Cases cited6 opinions
- Farmer v. FarmerSupreme Court of Missouri · 1895
- Fickle v. St. Louis, Kansas City & Northern Railway Co.Supreme Court of Missouri · 1873
- Nolan v. JohnsSupreme Court of Missouri · 1894
- Ehret v. Kansas City, St. Joseph & Council Bluffs Railway Co.Missouri Court of Appeals · 1886
- Walther v. Pacific R. R.Supreme Court of Missouri · 1874
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3Cited by1 opinion
- Wilson v. Kansas City Southern Railway Co.Missouri Court of Appeals · 1907