Radcliffe v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 06 December 1886 |
| Citation | 2 S.W. 277,90 Mo. 127 |
| Parties | Radcliffe v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
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 make out a prima facie case, for him to show that the road might have been and was not fenced when the injury occurred. This is so when the action is brought under section 2124, Revised Statutes. Unless this fact was found by the jury, the onus was on the plaintiff. This omission is fatal. Wyman v. Railroad, 79 Mo. 247; Young v. Railroad, 79 Mo. 336. Before the jury could find for plaintiff, some connection should have been shown between the omission to fence, and the injury. Braxton v. Railroad, 77 Mo. 455; Alexander v. Railroad, 76 Mo. 484. The third instruction asked by defendant should have been given. Young v. Railroad, 79 Mo. 336. (7) By an examination of the evidence which has been presented in extenso, it will be seen that there is a total failure of proof to make out a case under the statute as construed by this court in the cases which have been already cited.
Marshall Arnold for respondent.
(1) This action was obviously intended to be brought under section 2124, Revised Statutes. Hence, the authorities cited by appellant in support of the position that the statement fails to allege a cause of action under section 806 or section 809, Revised Statutes, are inapplicable. (2) While the statement does not negative in express words "that the injury occurred at a place where the railroad track may have been inclosed by a lawful fence," it does allege that the point where the injury occurred "was not laid out in streets in said village and was where the road passed along and through inclosed lands, and not at a public crossing," a state of facts from which the law will readily draw the inference that the road at that point "may have been inclosed by a lawful fence." Ellis v. Railroad, 48 Mo. 233; Edwards v. Railroad, 66 Mo. 567; Russell v. Railroad, 83 Mo. 507. Appellant's authorities abundantly sustain the view that a railroad company may or can fence its road within that part of an incorporated town not laid off into streets and thoroughfares. That a pleading should aver facts and not their legal conclusion is elementary. Appellant insists that "the strictness of the rules of pleading which apply in this class of actions must not be overlooked." Unless the fact that a railroad company is sued gives rise to such construction it is difficult to perceive any reason for the rule. Manz v. Railroad, 87 Mo. 278, cited, was decided under the double damage act, and the learned judge in that case enunciates the well established principle "that greater strictness of construction is requisite" in cases of that character than in ordinary actions. It is imagined that no greater strictness of averment and technical precision ought to be required in this than in other ordinary actions originating before magistrates Quinn v. Stout, 31 Mo. 160; Iba v. Railroad, 45 Mo. 469; McCartney v. Aner, 50 Mo. 395. (3) The company having the legal right to fence at the point where the animal was killed, the court committed no error in giving plaintiff's first and refusing defendant's third instruction. Sec. 2124, R. S.; Edwards v. Railroad, 66 Mo. 567; Clarkson v. Railroad, 84 Mo. 583. (4) There was evidence tending to support the verdict of the jury, and this court will not weigh the evidence to see whether or not the verdict is against the weight of the evidence. Blankenship v. Railroad, 48 Mo. 376; Wortman v. Campbell, 48 Mo. 509; Long v. Eaton, 49 Mo. 115; Brown v. Railroad, 50 Mo. 461.
This suit originated in a justice's court in Scott county, and the following is the statement of his cause of action filed by plaintiff with the justice:
"Plaintiff states that defendant is an incorporated company under the laws of the state of Missouri; that on the twenty-eighth day of September, 1882, it was the owner of, and operating, a railroad with cars and locomotives, and that on the day and year last aforesaid, within the corporate limits of the village of Oran, in Sylvania town-ship, in Scott county, at a point on the track of defendant's railroad where there were no fences, and where the land was not laid out in streets in said village, and where the same passed along and through enclosed lands, and not at a public crossing of said road, the defendant, by its agents and servants running its locomotives and trains of cars at a great rate of speed through said village, negligently and carelessly ran the same upon and over a mare of plaintiff, of the value of one hundred dollars, and thereby killed said mare; that defendant neglected to ring the bell of said locomotive or sound the whistle thereon, where said locomotive entered the corporate limits of said village; wherefore plaintiff asks judgment for one hundred dollars."
This is an appeal from the judgment of the circuit court in favor of plaintiff, and the first point made by appellant's counsel is, "that the statement fails to allege that the mare entered upon defendant's road at a point where the same was, by the statute, required to be fenced." The statute contains no such restriction upon the right of the owner of the injured cattle to recover. It provides that when any animal is killed or injured, by the cars, etc., used on any railroad in this state, the owner of such animal may recover its value in an action against the company "without any proof of negligence, * * * but this section shall not apply to any accident occurring on any portion of such road that may be inclosed by a lawful fence, or in the crossing of any public highway." Sec. 2124. Does the proviso mean that the...
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