Kerr v. Quincy, Omaha & Kansas City Railroad

BROADDUS, P. J.

— This suit was brought before a justice of the peace where plaintiff recovered judgment and defendant appealed to the circuit court where plaintiff again recovered and defendant appealed to this court.

The complaint alleges that defendant was the owner and operator of a railroad located through his farm in Penn township, Sullivan county, Missouri; that on *4 November 22, 1903, defendant, while engaged in operating an engine and train of cars over said railroad through plaintiff’s land, negligently permitted said engine to emit sparks of fire onto his said land which set fire to and destroyed thereon ten tons of hay of the value of $50 and five acres of blue grass of the value of $20. The verdict and judgment were for plaintiff in the sum of $50.

Defendant’s counsel conceded that the evidence admitted the inference that the fire was occasioned by sparks from the engine. It is, however, contended by defendant that there is nothing in the evidence showing that the justice of the peace had jurisdiction; or -that defendant owned or operated the railroad in question. It is claimed that there-was no showing that plaintiff resided in Penn township or that defendant had a station agent in the township.

Plaintiff was asked if he was the owner of the land described in the petition and he answered that he was. This was all the evidence as to plaintiff’s residence. ' But the return of the constable contains a recitation that the writ was served on defendant’s station agent in Penn township. This was conclusive evidence that the court had jurisdiction. Section 3839, Revised Statutes 1899, provides that suits of this kind may be brought in the township where the defendant may be found. It is not an action for killing or injuring animals which must be brought before a justice of the peace in which the injury happened. The law makes it the duty of the constable to make a truthful return of service, which is conclusive upon the parties to the suit. [State ex rel. Beckwith v. Finn, 100 Mo. 429 ; Decker v. Armstrong, 87 Mo. 316 .]

The next contention of defendant is that it nowhere .appears that the engine in question was operated by the defendant’s servants. The plaintiff was asked the following question: “Does the defendant railroad company run through your farm, Mr. Kerr?” His answer was : *5 “Yes, sir; it runs along the side of my farm.” Similar evidence has been held sufficient to support an allegation of ownership. In Geiser v. Railroad, 61 Mo. App. 459 , where the witness stated that the mule was killed on the Jackson branch of the St. Louis, Iron Mountain & Southern railway, the court said: “This evidence was received without objection. Some evidence of the fact of ownership was necessary, but full proof ought not to be exacted from plaintiff, especially when no intimation is made that the claim is resisted on that ground.” That case and the one before us are parallel upon principle in every important particular. If the defendant was the owner of the railroad in question the presumption, in the absence of evidence to the contrary, is that defendant was operating it.

It is also contended that the court committed error in giving plaintiff’s first instruction. It reads: “The court instructs the jury that if they believe and find from the evidence,” etc. The objection is that it fails to place the burden of proof upon plaintiff to prove his case by a preponderance of the evidence. The instruction is good enough as it stands. The jury are instructed that they must arrive at a verdict from the evidence; that is, from all the evidence in the case. If defendant wanted the jury instructed as to the preponderance of the evidence, it ought to have asked the court to so instruct. But it failed in that respect, for which reason it is in no condition to avail itself of a technical error at most; and when it could have had, by asking, an instruction imposing the burden of proof upon plaintiff.

We find no error in the trial. Affirmed.

All concur.