
    MARION, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY et al., Appellants.
    St. Louis Court of Appeals,
    April 16, 1907.
    PRACTICE: Instruction: Failure to Instruct. On the trial of a civil case the court is not required to instruct the jury except upon the request of the parties. In an action for damages against a railroad company for hilling stoch, where the plaintiff ashed no instruction and the court refused to give instructions upon its own motion, the defendant could not complain that all the issues arising in the case were not submitted to the jury.
    Appeal from New Madrid Circuit Court. — Hon. Henry C. Riley, Judge.
    Affirmed.
    
      L. F. Parker and Moses Wlvybark for appellants.
    (1) This suit was brought in the circuit court,, and not before a justice of the peace, under the. Double Damage Statute, which is a penal statute". R. S. 1899, sec. 1105; Barnett v. Railroad, 68 Mo. 56. The statute defines what a lawful fence shall be. R. S. 1899, sec. 3295. In a case of this nature it has been held that the court should instruct the jury, and not leave them to grope their way unaided through the testimony in order to determine what they should take into consideration in making up their verdict. Rains v. Railroad, 71 Mo. 169. (2) If the facts are disputed, instructions are always required. McQuillin on Instructions, p. 5, sec. 7. And it is the duty of the court to instruct the jury when required. 11 Enc. PI. and Pr. pp. 213, 214. But in the case at bar the plaintiff refused to offer any instructions on a penal statute, which, in its nature, is criminal, and the court sustained him in that conduct; and then the court refused to instruct the jury, although requested to do so by the defendant. This, we submit, is not the law. Bindbeutal v. Railway, 43 Mo. App. 463. Mitchell y. Bradstreet Co., 116 M'o. 226; Coleman v. Drane, 116 Mo. 387; Nolan y. Johns, 126 Mo. 159; Browning v. Railroad, 124 Mo. 55; Boettger y. Iron Co., 124 Mo. 87; Tetherow y. Railroad, 98 Mo. 74.
    
      J. V. Conran for respondent.
    Statement. — The petition is as follows (omitting caption) :
    “Plaintiff for cause of action states that on the day of-, 1904, the defendants were and still are corporations running and operating a railroad, and running-trains of cars through the township of LaFont, in New Madrid county, in the State of Missouri; that on said day the plaintiff was the owner of the following- personal property to-wit: sis hogs of the value of twenty dollars; that said hogs on said day strayed in and upon the tracks and grounds occupied by the said railroad of defendant, at a point where said road, passes through, along or adjoining inclosed or cultivated fields, or uninclosed lands, at and in the township- of LaFont, in New Madrid county, Missouri, and at a point where said defendants were by law required to erect and maintain good and lawful fences along the sides of their railroad, and to construct sufficient cattle guards, and not a public road crossing, nor within the switch limits of any station, nor within the limits of any incorporated city, town or village. The said hogs on said day- strayed and went in and upon the tracks and grounds by reason of the failure and neglect of the defendants to erect and maintain the good and lawful fences aforesaid along the side of their said railroad, and to construct sufficient cattle-guards where said hogs entered upon the same as aforesaid. That defendants, by their agents and servants, run their engine and cars upon and against said hogs at said point in LaFont township, in New Madrid county, in the State of Missouri, on the — day of-, 1904, thereby killing said hogs to plaintiff’s damages in the sum of twenty dollars.
    “Wherefore the plaintiff prays damages in the sum of forty dollars, being double the damages sustained by him, and for costs.”
    The answer admitted defendants were corporations but denied all other obligations of the petition.
    Plaintiff’s evidence tended to prove the allegations of his petition and was sufficient to authorize the jury to find a verdict in his favor. There was no countervailing evidence except as to the value of the hogs killed. At the close of the evidence, defendants offered a demurrer to the evidence which the court overruled.
    The court gave the following instruction for plaintiff:
    “The court instructs the jury that in arriving at their verdict they should take into consideration the evidence as detailed from the witness stand by the witnesses and should not in any way be influenced by statements made to them by the parties outside of the trial of this case.”
    The plaintiff offered no other instructions. Thereupon defendants requested the court to require the plaintiff to present instructions, showing upon what ground he sought to recover, before the jury, which the court declined to do and to which defendants excepted. Defendants then requested the court to instruct the jury as to the law of the case upon which plaintiff’s right against recovery could be based under the evidence and the law, which the court refused to do, and to which defendants excepted at the time; and the jury were therefore left without any instructions on this feature of the case.
    Defendants asked the following instructions, which the court gave:
    “1. The court instructs the jury that you are the sole judges of the weight to be given to-the testimony of the witnesses, as well as their credibility; and while the opinions of the market value of the hog sued for are admissible, yet you are not bound by such opinions, and you may reject them if they appear to be unreasonable, and form your own conclusions of the value of the hog sued for, if you find the issues for the plaintiff, from all the facts and circumstances in evidence in the case.
    
      “2. That if you find the issues for the plaintiff, then in determining the value of his pigs you will not consider the value of them to him, but their reasonable market value where and when killed, which you will determine from the age, size and stock of the pigs, together with all other facts and circumstances in the case.’-’
    The jury found for plaintiff and assessed his damages at twelve dollars.
   BLAND, P. J.

(after stating the facts.) — 1. Defendants contend that the court erred in refusing to instruct the jury on the theory of plaintiff’s case, and on what ground he was entitled to recover. Section 748, Revised Statutes 1899, provides: “When the evidence is concluded, and before the case is argued or submitted, . . . . either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused. The court may of its own motion give like instructions,” etc. In Eagle Construction Company v. Railroad, 71 Mo. App. 626, the plaintiff only asked an instruction as to the measure of damages. On appeal it was contended that plaintiff, by other instructions, should have presented all the issues made by the pleadings. This court, through Bond, J., at pages 629-30, said: “This view is erroneous. On the trial of civil cases the court is not required to instruct the jury except upon the request of the parties. As the plaintiff asked for no other instructions than the one given the court was not obliged to give any other on its behalf. If the defendant desired any or all of the issues joined to be presented by instructions, it should have framed appropriate request^ in writing for that purpose. This was not clone in the present case, wherefore defendant is in no position to complain that all the issues were not submitted to the jury. Non-direction in civil cases is never reversible error. [R. S. 1889, sec. 2188; Nolan v. Johns, 126 Mo. loc. cit. 166, 28 S. W. 492; Browning v. Railway, 124 Mo. loc. cit. 72, 27 S. W. 644; Coleman v. Drane, 116 Mo. loc. cit. 394, 22 S. W. 801; Railway v. Townsite Co., 103 Mo. loc. cit. 468, 15 S. W. 437; Tetherow v. Railway, 98 Mo. loc. cit. 86, 11 S. W. 310; Hurst v. Scammon, Bailey & Co, 63 Mo. App. 636; Storck v. Mesker, 55 Mo. App. loc. cit. 39.]” The cases cited in the opinion support the text, which we think is in accord with section 748, Revised Statutes Í899. A request for instructions under this section can only be legally and properly made by submitting the request in Avriting, embodying the instructions the mover thinks the court should give. The petition stated every fact contained in the statute on which it is based, essential, to plaintiff’s right of recovery and though it is inartificially drawn and possibly open to attack by demurrer, Ave entertain no doubt that it is •sufficient after verdict and judgment. No reversible error appearing, the judgment is affirmed.

All concur.  