20 Mo.App. 427 (Mo.App. 1886), Brown v. Kansas City, St. Joseph & Council Bluffs Ry. Co.
|Citation:||20 Mo.App. 427|
|Opinion Judge:||PHILIPS, P. J.|
|Party Name:||THOMAS A. BROWN, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant.|
|Attorney:||E. S. GOSNEY and STRONG & MOSMAN, for the appellant. No brief on file for the respondent.|
|Case Date:||January 25, 1886|
|Court:||Court of Appeals of Missouri|
APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.
The case and facts are sufficiently stated in the opinion.
I. Duplicity is a substantial objection. Sect. 3530, Rev. Stat. Defendant had a right to be informed of the specific neglect, on account of which a recovery against it was sought. Sects. 3529, 3531, Rev. Stat.; Attebury v. Powell, 29 Mo. 429.
II. Defendant's objections to the evidence as to whether the crossing was public or private; or of the condition of the gates; or of the condition of the fence of the Hannibal & St. Joseph Railroad, should have all been sustained. Harrington v. Railroad, 71 Mo. 384.
III. Defendant's demurrer to the evidence should have been sustained, because there was no evidence that by reason of any defects in defendant's fences the cattle came upon the track. Clardy v. Railroad, 73 Mo. 576; Cecil v. Railroad, 47 Mo. 246.
IV. Where the petition alleges a specific act of negligence as the ground of plaintiff's action, there can be no recovery for any other. Buffington v. Railroad, 64 Mo. 246; Schneider v. Railroad, 75 Mo. 295; Edens v. Railroad, 72 Mo. 212.
V. The court erred in refusing defendant's first instruction; if there was a question on the case made by the plaintiff's evidence, all doubt was removed by that of defendant. The court also erred in giving plaintiff's first instruction. Price v. Railroad, 72 Mo. 414; Benson's case, 78 Mo. 594; Landis v. Hamilton, 77 Mo. 561; Abbott v. Railroad, 83 Mo. 271; sect. 1358, Rev. Stat.
VI. There was no public road at Smith's crossing.
This is an action based on section 809, of the Revised Satutes, to recover damages against the defendant, a railroad corporation, for killing three head of cattle, the property of plaintiff. The allegations of the petition are, that the cattle strayed onto the railroad track where the same passed along and adjoining uninclosed lands and where the defendant had failed and neglected to construct and maintain lawful fences and cattle guards sufficient to prevent cattle from getting on its road. The plaintiff recovered judgment, and the defendant has appealed.
I. It is assigned for error that the court improperly overruled the motion made by defendant before the trial to strike out of the petition the allegations touching the neglect to erect and maintain a fence. If it be conceded that the neglect to erect and maintain the fence, and also to erect and maintain the cattle guards, constitute two separate causes of action, and that the one is so inconsistent with the other that they could not conspire to cause...
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