Brown v. Kansas City, St. Joseph & Council Bluffs Ry. Co.
| Citation | 20 Mo.App. 427 |
| Parties | THOMAS A. BROWN, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant. |
| Decision Date | 25 January 1886 |
| Court | Court of Appeals of Kansas |
APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.
Affirmed.
The case and facts are sufficiently stated in the opinion.
E. S GOSNEY and STRONG & MOSMAN, for the appellant.
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.
No brief on file for the respondent.
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 the injury, was the motion interposed by defendant the proper remedy to reach the defect in pleading? The improper union in one count of causes of action, which invites a demurrer, pertains to the union of incongruous causes of action, which cannot be united in the same petition, " and not to the intermingling of causes of the same class in the same count." The imputed defect in the petition at bar belongs to the latter class. As the plaintiff was entitled to recover on either one of the grounds alleged, if supported by proof, if they could not be united in one count, defendant's remedy was by motion to compel the plaintiff to elect on which one he would proceed to trial, and to strike out the remaining cause (Otis v. Mech. Bk., 35 Mo. 128); whereas, by the motion made, the defendant undertook to make this election itself and to strike out the one that best subserved its purpose. This it could not do. The motion was, therefore, properly denied. And the defect, if one, was cured by verdict, in the absence of the proper steps to remedy it. House v. Lowell et al., 45 Mo. 381.
II. It is also assigned for error that there is a material variance between the averments of the petition and the first instruction given by the court on behalf of plaintiff. This is predicated of the fact that the petition alleges that the public road crossing, where defendant should have erected and maintained cattle guards, is the road leading south from the city of St. Joseph, known as the St. Joseph and Weston road, whereas, the instruction says: " If the point described in evidence as Smith's crossing," etc. Defendant now contends that " Smith's crossing" is not identical with that described in the petition, but in fact is about one-half mile further north. In support of this position we are cited to cases like those of Moffat v. Conklin (35 Mo. 453); Bank v. Armstrong (62 Mo. 70); Glass v. Gelvin (80 Mo. 397), and especially to Price v. Ry. Co. (72 Mo. 414).
These cases assert the familiar rule of practice that a party cannot sue for one cause of action and recover on one not stated. In the Price case the gravamen of the petition was the neglect of the railroad company to stop long enough at its depot to allow the plaintiff time to safely pass from its cars, and negligently starting while plaintiff was in the act of departing, whereby he was injured. In addition to proof supporting this issue, plaintiff, also, introduced evidence tending to show that defendant's depot platform was not lighted. And by an instruction predicated a right of recovery on the omission to have such light. This was properly held to be a departure.
Waiving any discussion as to whether the rule invoked applies to the apparent variance in question, I am persuaded, from an examination of the record, that the court designated the crossing as " Smith's crossing" for the sufficient reason that the evidence tended to show that this is the same crossing as that alleged in the petition. If so, the defendant complains without injury.
It must be borne in mind that the petition says nothing about the road being the one most used by the public. Its averments are that it was the road leading south from the city of St. Joseph, known as the St. Joseph and Weston road, and that it crossed defendant's railroad. The witness, Johnson, who hauled over it almost daily, testified that it is called the Columbus Smith crossing. Coleman testified that he had known this crossing for ten years as a public traveled road, and that he never knew the main traveled road crossed lower down, etc. Brown, another witness, testified that he had known the road for twenty-five years; that the crossing was called " Smith's crossing." It is true the evidence showed that one Fannon, who owned land adjoining the railroad, had turned the road just east of this point, so that much, if not the greater part, of the travel south passed over the railroad further south. But this fact neither disproved that the other crossing was a public road, nor that " the old road from St. Joseph to Weston" did not cross the railroad at the point designated by the witnesses as " Smith's crossing." The evidence also showed that while an attempt had been made to divert the travel over the lower crossing, and that the railroad company had placed gates over the old crossing, the public were so persistent in maintaining this crossing as a public highway that they disregarded the gates, and they were left open as a rule, scarcely ever being found closed.
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