76 Mo. 217 (Mo. 1882), Palmer v. Missouri Pac. Ry. Co.

• Citation: 76 Mo. 217
• Opinion Judge: HENRY, J.
• Party Name: PALMER v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Attorney: T. J. Portis and E. A. Andrews for appellant. Snoddy & Short for respondent.
• Court: Supreme Court of Missouri

Page 217

76 Mo. 217 (Mo. 1882)

PALMER

v.

THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882

Appeal from Pettis Circuit Court. --HON. WILLIAM T. WOOD, Judge.

AFFIRMED.

T. J. Portis and E. A. Andrews for appellant.

Snoddy & Short for respondent.

HENRY, J.

This suit is for the recovery of damages for the destruction of plaintiff's timothy, orchard grass, etc., alleged to have been occasioned by the negligent and careless manner in which defendant managed a locomotive passing over its road, whereby sparks of fire were permitted to escape therefrom, which set fire to said timothy, etc. Plaintiff obtained a judgment, from which defendant prosecutes this appeal.

The petition contained six counts, four of which are based upon the alleged burning, and two were for killing stock; and, being compelled to make an election on which of said counts he would go to trial, plaintiff elected to proceed on the fourth, fifth and sixth. The fourth is as follows: " Plaintiff further states that on the 10th day of December, 1876, while defendant, by its agents and employes, was propelling along and over its said railroad a certain other locomotive engine, where the right of way of said railroad extends along, through and adjoining a farm owned and cultivated by plaintiff, said defendant so carelessly and negligently ran and managed said locomotive engine, to-wit: the locomotive engine attached to and drawing the passenger train going east on said road, that sparks and fire were permitted to escape therefrom into and on plaintiff's said farm, and into and on defendant's said right of way, where defendant had carelessly and negligently permitted dry grass, weeds and other combustible matter to accumulate, and thereby set fire to, and communicated fire to certain other property belonging to plaintiff on said farm, to-wit." Then follows a description of the property destroyed.

We have no occasion to notice the fifth and sixth counts, inasmuch as appellant in the brief makes no complaint of any action of the court with respect to the trial of the issues made on them.

On the margin of the petition at the commencement, the venue is alleged as follows:

" STATE OF MISSOURI, )

) ss.

County of Pettis, )

In the Pettis County Circuit Court." 1. VENUE. Appellant's counsel contend that the petition is fatally defective in not stating the locality of plaintiff's farm. There is no necessity in such case to allege its specific locality within the county. Stating the county in which it is situate, is sufficient, and by section 28, Wagner's Statutes, page 1018, the name of the county stated in the margin, shall be taken to be the venue intended; and it shall not be necessary to state a venue in the body of the petition, or in any subsequent pleading. The common law rule on the subject is, therefore, no longer in force. Bliss on Code Plead., § 284. 2. PLEADING NEGLIGENCE. Appellant's counsel also insist that the petition states no specific facts of negligence or carelessness, and liken this to the case of Waldhier v. Hann. & St. Jo. R. R. Co., 71 Mo. 514. In the latter case the allegation was that " defendant by reason of its negligence and carelessness, plaintiff was run against by one of defendant's cars, thereby," etc. A more vague allegation could not be made. Whether the negligence was that of the employes running the train, the train dispatcher or the section hands, or consisted in the improper and careless construction of the road, is not to be ascertained from that allegation. Nor is it helped by the subsequent allegation: " that plaintiff was then...