Crutchfield v. St. Louis, Kansas City & Northern Railway Co.

Hough, Judge,

delivered the opinion of the court.

This was an action brought under the 43d section of the act in relation to railroad companies, to recover double damages for the killing and crippling by defendant’s cars of certain horses and mules belonging to plaintiff, at a point on defendant’s railroad where it was alleged that defendant had failed to erect and maintain good and substantial fences, as required by the provisions of said section.

The petition contained an allegation that the killing and crippling were negligently done.

The answer contained a specific denial of each allegation in the petition.

The testimony tended to show that the railroad was, at the time and place where the horses and mules were killed and injured, inclosed by a good and substantial fence, as required by law ; and that the animals strayed on the track through an open gate at a farm crossing. It did not appear who left the gate open.

There was a verdict and judgment for the plaintiff, and the defendant has appealed.

Notwithstanding the allegations that the killing was negligently done, the averments as to the duty of defendant to erect and maintain fences, the alleged breach of that duty, the prayer for double damages, and the direct reference made in the body of the *257 petition to the 43d section of the railroad law, established beyond controversy, or cavil, that the petition was founded on that section.

The appellant Has assigned for error the giving by the court.of the following instruction, asked by the plaintiff:

“The jury are instructed that although they may believe that defendant had erected and maintained good and substantial fences on the sides of its-road, where the accident occurred, with gates and other cattle guards at farm crossings, yet if they further believe that the killing was the result of negligence on the part of the person in charge of the engine and cars, they must find for plaintiff.”

This instruction is in direct conflict with the decision of this court in the case of Cary vs. St. L., K. C. & N. R’y Co., 60 Mo. 209 . It was there held that in actions under the 43d section of the railroad law, no recovery can be had for injuries resulting from the negligent management of the train, but for such only as result from the failure of the railroad company to erect and maintain fences, cattle guards, etc.; that for injuries to stock resulting from negligence in the management of a locomotive or train, suit must be brought under the 5th section of the damage act. (See also Wood vs. R’y Co., 58 Mo. 109 .)

But notwithstanding this error of the court the judgment must be affirmed, as it appears from the record that in four of the instructions given by the court, at the defendant’s own request, the same rule of liability is substantially declared.

We cannot relieve a party from errors committed by himself ; and he is estopped from objecting to an instruction given at his own request. (Chamberlin vs. Smith, 1 Mo. 482 .) When error has been committed against the appellant, to authorize a reversal of the judgment it must appear that such error was or may have been prejudicial to him. If the instruction complained of had been refused by the court, the situation of the defendant would not have been improved. The result must have been the same. The same declaration of law by which the defendant now claims to have been injured, would still have remained to direct the find *258 ing of the jury. A mistake was committed at the trial for which we can afford no relief. The judgment must be affirmed.

All the other judges concur.