Sappington v. Missouri Pacific R.R. Co.

Citation14 Mo.App. 86
PartiesMARY A. SAPPINGTON, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
Decision Date29 May 1883
CourtCourt of Appeal of Missouri (US)

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

H. S. PRIEST, for the appellant.

J. H. HAWKEN, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

Plaintiff alleges in her petition “that she is a freeholder owning lands in the county of St. Louis, and that defendant is, and was on September 5, 1881, a corporation owning and operating railroads under an act of the General Assembly of the State of Missouri, entitled an act to incorporate the Pacific Railroad Company, approved March 12, 1849, and subsequent acts amendatory thereto. That the line of defendant's road forms the southern boundary of her lands; That, on said 5th of September, defendant, whilst running its cars upon said railroad, the locomotive attached to and drawing said cars was so carelesslyand negligently managed by defendant, its officers and agents, that fire was allowed to escape therefrom upon the right of way of defendant; that said right of way was so carelessly and negligently managed and maintained that said fire was communicated to the lands of plaintiff, causing great destruction and damage to the property, to wit: 320 fence rails, valued at $6 per hundred, aggregating the sum of $19.40; also, a complete set of oak timbers, framed for a large barn of the value of $175.” The petition concluded in the usual manner. The answer is a general denial. There was a verdict and judgment for the amount claimed.

1. The defendant at the trial objected to the introduction of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action, and because its allegations are too vague and uncertain. We think that the objection was properly overruled. It is enough that the substantial averments are there. All formal defects are waived, when defendant fails to demur and answers over. The petition is inartificial. It is objected that it nowhere alleges in direct and positive terms that the property destroyed was the property of plaintiff. But we will not, after a trial on the merits, turn the plaintiff out of court because the word “the” in a petition is written instead of “her,” when there has been no demurrer, and the meaning of the pleader is obvious, and there has been no surprise, and defendant has not been prejudiced. As to the objection to the allegation as to the management of defendant's right of way, that it is the statement of evidence, or of a conclusion of law, and not of a fact, we see nothing in it.

2. It is objected that the incorporation of defendant is denied by the answer, and that it was not proved on the trial. Defendant having appealed and answered, is estopped to deny its own existence. Witthouse v. Railroad Co. 64 Mo. 523. If it claims that it is improperly sued as the “Missouri Pacific Railroad Company,” and that its name is that under which it was originally incorporated, as set out in the petition, it should have set this up in answer, and, at the same time averred its real name.

3. The plaintiff introduced evidence tending to show that the property destroyed consisted of fencing on her farm adjoining the railroad company's fence, and the timbers of a barn on her premises, blown down before the fire, and that it was of the value stated in the petition, and was in her possession at the time of the fire; that the fire originated on the defendant's right of way; spread then to Ead's property, and thence to that of plaintiff, at a distance of two hundred yards from the track; that the defendant's right of way had been mowed a month before the fire, and that the grass and weeds had been left there to dry just as they fell; and that the fire burst out on defendant's right of way in this dry stuff just after a locomotive of defendant's passed; and that no grass or rubbish had been thrown from plaintiff's premises on to defendant's right of way.

On behalf of defendant, the engineer of the train which passed just before the fire, testified as to his skill and competency, and that the fireman of the locomotive in question was also skillful and competent; that they ran the engine carefully past plaintiff's place at the time spoken of by plaintiff's witnesses; and that the smoke stack and smoke arrester on the engine at the time were the best known in use to prevent the escape of fire. The smoke stack...

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17 cases
  • Continental Ins. Co. v. Chicago & Northwestern Ry. Co.
    • United States
    • Supreme Court of Minnesota (US)
    • 30 Marzo 1906
    ...252; Atchison v. Geiser, 68 Kan. 281, 75 Pac. 68; St. Louis v. Funk, 85 Ill. 460 (cf. Chicago v. Quaintance, 58 Ill. 389); Sappington v. Missouri, 14 Mo. App. 86, 90; Palmer v. Missouri, 76 Mo. 217; v. Missouri, 17 Mo. App. 356; Babcock v. Chicago, 62 Iowa, 593, 13 N. W. 740, 17 N. W. 909; ......
  • Cont'l Ins. Co. v. Chi. & N. W. Ry. Co.
    • United States
    • Supreme Court of Minnesota (US)
    • 30 Marzo 1906
    ...(Kan.) 75 Pac. 68;St. Louis, etc., Ry. Co. v. Funk, 85 Ill. 460 (cf. Chicago, etc., Ry. Co. v. Quaintance, 58 Ill. 389);Sappington v. Mo. Pac. Ry. Co., 14 Mo. App. 86, 90;Palmer v. Railway Co., 76 Mo. 217; Huff v. Railway Co., 17 Mo. App. 356;Babcock v. Railway Co., 62 Iowa, 593, 13 N. W. 7......
  • Berry v. Missouri Pac. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 5 Febrero 1894
    ...the submission of all such cases to the jury. Hipsley v. Railway Co., 88 Mo. 348; Brown v. Railway Co., 13 Mo. App. 462; Sappington v. Railway Co., 14 Mo. App. 86; Kenney v. Railroad Co., 80 Mo. 573; Wise v. Railroad Co., 85 Mo. 178. It is said to be the right and province of the jury to de......
  • Berry v. Missouri Pacific Railway Company
    • United States
    • United States State Supreme Court of Missouri
    • 5 Febrero 1894
    ...... such cases to the jury. Hipsley v. Railroad , 88 Mo. 348; Brown v. Railroad , 13 Mo.App. 462;. Sappington v. Railroad , 14 Mo.App. 86; Kenney v. Railroad , 80 Mo. 573; Wise v. Railroad , 85 Mo. 178. . .          It is. said to be the ......
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