21 Mo.App. 5 (Mo.App. 1886), Silver v. Kansas City, St. L. & C. Ry. Co.

• Citation: 21 Mo.App. 5
• Opinion Judge: ELLISON, J.
• Party Name: GEORGE H. SILVER, Respondent, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILWAY COMPANY, Appellant.
• Attorney: MCFARLANE & TRIMBLE, for the appellants. I. HALL, for the respondent.
• Case Date: February 15, 1886
• Court: Court of Appeals of Missouri

Page 5

21 Mo.App. 5 (Mo.App. 1886)

GEORGE H. SILVER, Respondent,

v.

KANSAS CITY, ST. LOUIS & CHICAGO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 15, 1886

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

Statement of case by the court.

In the spring of 1878 defendant commenced the location and construction of a railroad from Mexico to Kansas City. About March it commenced grading its road from Mexico, commencing at several points west of Mexico at the same time. The construction of the road was done by the Chicago & Alton Railway Company, under contract with defendant. Plaintiff owned forty acres of land inclosed by fence, about four miles west of Mexico, through which the road as located passed. The grading was commenced on plaintiff's land about the first of March. The grading was completed from Mexico, twenty-five or thirty miles west and track was laid from Mexico west and was completed through plaintiff's farm about June 10, and was extended west at once. Defendant commenced building fences and cattle guards at once, at such points as in the judgment of its officers they were most needed. As soon as grading was commenced through plaintiff's field his fences were left open and cattle commenced going into plaintiff's fields, which was continued until July, when cross fences and cattle guards were built.

In July a lot of plaintiff's sheep came upon the track from his field and were struck and some of them killed by an engine operated by and belonging to the Chicago & Alton Railroad Company, in carrying materials to Wolf & Sons who had a sub-contract. The side fences were not built through plaintiff's field until October or November.

In August, 1878, plaintiff commenced suit for damages. The petition contained four counts. (1) for double damages under section 809 for killing the sheep. (2) for negligence in killing the sheep. (3) for trespass under section 3922 (as claimed by defendant). (4) trespass at common law for breaking plaintiff's close. The case was tried on these counts and defendant had judgment on all of them. Plaintiff appealed to the supreme court and judgment was reversed and cause remanded. In January, 1884, over five years after the commencement of the original suit plaintiff filed an amended petition containing two counts, both under section 809. One for killing the sheep, the other for damage to his crops by cattle, both occasioned by failure to fence.

Defendant moved to strike out the second count as not being an amendment to the original petition, the motion was overruled and defendant pleaded the statute of limitation to that count. To both counts it pleaded a general denial. That the damage complained of was done by...