Melvin v. St. Louis & San Francisco Railway Co.

• Decision Date: 07 June 1886
• Citation: 1 S.W. 286,89 Mo. 106
• Parties: Melvin v. The St. Louis & San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

1 S.W. 286

89 Mo. 106

Melvin v. The St. Louis & San Francisco Railway Company, Appellant

Supreme Court of Missouri

June 7, 1886

Appeal from Phelps Circuit Court. -- Hon. C. C. Bland, Judge.

Reversed.

John O'Day for appellant.

(1) The court erred in overruling defendant's motion to require plaintiff to make his petition more specific and certain. Defendant had a right, when properly asked for, to have the occurrence of the negligence confined within reasonable bounds. It was easy for plaintiff to have stated this. It was all important to defendant to have it done. Allerby v. Powell, 29 Mo. 429; State v. Sherman, 42 Mo. 210. (2) Error was committed in submitting to the jury evidence that defendant was guilty of negligence in permitting dry grass to accumulate upon its right of way. There was no such allegation in the petition. Ely v. Railroad, 77 Mo. 34; Buffington v. Railroad, 64 Mo. 246; Eden v. Railroad, 72 Mo. 212; Bell v. Railroad, 72 Mo. 50; Price v. Railroad, 72 Mo. 416; Waldhier v. Railroad, 71 Mo. 514; Kenney v. Railroad, 70 Mo. 252; Carson v. Cummings, 69 Mo. 325; Bank v. Murdock, 62 Mo. 70; Weil v. Green Co., 69 Mo. 281.

C. D. Jamison for respondent.

OPINION

Per Curiam.

The complaint states "That defendant, in said month of May, through its agents and servants, negligently permitted fire to escape from defendant's engines upon said road, whereby fire was communicated to plaintiff's fence," etc. No reason is assigned by the plaintiff why he could not state with more certainty the time when the fire escaped from the engine. Reason and justice dictate that the complaint should be more specific in this respect, to the end that the defendant may be able to determine who of its agents were in charge of the train, and thereby prepare for the trial of the issues. The motion to make the complaint more specific in this behalf should have been sustained.

There is no charge whatever of negligence in permitting dry grass to accumulate upon the right of way, and it was error to submit the cause to the jury upon that issue, for it was not made by the pleading. Kenney v. Railroad, 70 Mo. 252.

The judgment is reversed and the cause remanded.