2 S.W. 277 (Mo. 1886), Radcliffe v. St. Louis, Iron Mountain & Southern Railway Co.

• Citation: 2 S.W. 277, 90 Mo. 127
• Opinion Judge: Henry, C. J.
• Party Name: Radcliffe v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Attorney: Smith, Silver & Brown and T. J. Portis for appellant. Marshall Arnold for respondent.
• Case Date: December 06, 1886
• Court: Supreme Court of Missouri

Page 277

2 S.W. 277 (Mo. 1886)

90 Mo. 127

Radcliffe

v.

The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

December 6, 1886

Appeal from Scott Circuit Court. -- Hon. J. D. Foster, Judge.

Affirmed.

Smith, Silver & Brown and T. J. Portis for appellant.

(1) The objection of the defendant to the introduction of any evidence, for the reason that the statement of the plaintiff failed to allege a cause of action, should have been sustained. The statement does not state a cause of action under the provisions of section 809 of the Revised Statutes. It fails to allege that the mare killed was injured, or entered upon defendant's road, at a point where the same was, by the statute, required to be fenced. Manz v. Railroad, 87 Mo. 278; Davis v. Railroad, 65 Mo. 441, and cas. cit.; Roland v. Railroad, 73 Mo. 619; Bates v. Railroad, 74 Mo. 60. (2) Nor does it state that the injuries to said mare were occasioned by the failure of defendant to erect and maintain good and sufficient fences, etc. Tucker v. Railroad, 67 Mo. 245; Cunningham v. Railroad, 70 Mo. 202; Sloan v. Railroad, 74 Mo. 47. (3) Nor does the statement allege a cause of action under section 806 of the Revised Statutes. The allegation that defendant failed to ring the bell or sound the whistle on the train which killed plaintiff's mare, is not sufficient to make defendant liable. Holman v. Railroad, 62 Mo. 562; Moore v. Railroad, 62 Mo. 584; Stoneman v. Railroad, 58 Mo. 503. (4) There is no connection alleged between defendant's omission of the statutory duty, and the injury complained of. This must be alleged and proved. Braxton v. Railroad, 77 Mo. 455; Alexander v. Railroad, 76 Mo. 494; Turner v. Railroad, 78 Mo. 581; Stoneman v. Railroad, 58 Mo. 503; Holman v. Railroad, 62 Mo. 562. (5) Nor does it state a cause of action under the provisions of section 2124, of Revised Statutes, for the reason that it does not negative the statutory exception that the injury occurred at a place where the railroad track "may have been inclosed by a lawful fence." This failure is fatal. R. S., sec. 2124; Clarkson v. Railroad, 84 Mo. 583; Swearengen v. Railroad, 64 Mo. 73; Edwards v. Railroad, 66 Mo. 567; Nance v. Railroad, 78 Mo. 196; Wyman v. Railroad, 79 Mo. 247; Tiarks v. Railroad, 58 Mo. 45; Russell v. Railroad, 83 Mo. 507. The strictness of the rules of pleading which apply in this class of actions must not be overlooked. Manz v. Railroad, 87 Mo. 278. (6) The first instruction given for plaintiff, erroneously told the jury that if the plaintiff's mare was killed by defendant's train of cars within the corporate limits of the village of Oran, at a point not at the crossing of a public highway, and at a point of territory adjacent in said corporate limits where there were no streets crossed by defendant's road, then the plaintiff was entitled to recover without proof of negligence. To relieve the plaintiff of the burden of proving negligence, it was necessary, in order to...