64 Mo. 255 (Mo. 1876), Crutchfield v. St. Louis, K. C. & N. Ry. Co.

• Citation: 64 Mo. 255
• Opinion Judge: HOUGH, Judge.
• Party Name: W. B. CRUTCHFIELD, Respondent, v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., Appellant.
• Attorney: W. H. Blodgett, for Appellant, T. B. Kimbrough, for Respondent.
• Court: Supreme Court of Missouri

Page 255

64 Mo. 255 (Mo. 1876)

W. B. CRUTCHFIELD, Respondent,

v.

ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., Appellant.

Supreme Court of Missouri.

October Term, 1876

Appeal from Randolph County Circuit Court.

W. H. Blodgett, for Appellant, cited: Cary vs. St. Louis, K. C. & N. R'y Co., 60 Mo. 209; Biglow vs. N. Mo. Co., 48 Mo. 510; Gorman vs. P. R. R. Co., 26 Mo. 441; Wood vs. St. L., K. C. & N. R'y Co., 58 Mo. 109.

T. B. Kimbrough, for Respondent.

The language of the petition, in charging defendant's liability, " negligence, unskillfulness and misconduct" on the part of the defendant's engineers, officers, servants, agents, and employees; and the fact that the court rendered judgment in the case in favor of the plaintiff for exactly the amount found by the jury in their verdict for plaintiff, all show the character of the action, and that it was tried by the court as one, founded not upon the provisions of the 43d section of the statute before referred to, but as founded on the " " " damage act."

OPINION

HOUGH, Judge.

This was an action brought under the 43d section of the act in relation to railroad companies, to recover double damages for the killing and crippling by defendant's cars of certain horses and mules belonging to plaintiff, at a point on defendant's railroad where it was alleged that defendant had failed to erect and maintain good and substantial fences, as required by the provisions of said section.

The petition contained an allegation that the killing and crippling were negligently done.

The answer contained a specific denial of each allegation in the petition.

The testimony tended to show that the railroad was, at the time and place where the horses and mules were killed and injured, inclosed by a good and substantial fence, as required by law; and that the animals strayed on the track through an open gate at a farm crossing. It did not appear who left the gate open.

There was a verdict and judgment for the plaintiff, and the defendant has appealed.

Notwithstanding the allegations that the killing was negligently done, the averments as to the duty of defendant to erect and maintain fences, the alleged breach of that duty, the prayer for double damages, and the direct reference made in the body of the petition to the 43d section of the railroad law, established beyond controversy, or...