87 Mo. 117 (Mo. 1885), Patton v. St. Louis & S. F. Ry. Co.

Citation:87 Mo. 117
Opinion Judge:BLACK, J.
Attorney:John O'Day for appellant. Goode & Cravens for respondent.
Court:Supreme Court of Missouri

Page 117

87 Mo. 117 (Mo. 1885)




Supreme Court of Missouri.

October Term, 1885

Appeal from Dade Circuit Court. --HON. C. G. BURTON, Judge.


John O'Day for appellant.

(1) " A petition stating, without any specification of facts, that plaintiff was injured in consequence of the negligence of the railroad company in using defective machinery, and in running and managing its railway and cars, would be fatally defective, and when such allegations are used in connection with a specific statement of a cause of action, they do not enable the plaintiff to recover on any cause of action except that specifically stated." Waldhier v. H. & St. Jo. Ry. Co., 71 Mo. 514. " The statement in question does not contain an averment of a single fact, but only states a conclusion of law, and is insufficient as a statement of a cause of action." Butts v. Phelps, 79 Mo. 302. " It is merely a conclusion of law; it is not a statement of any fact at all." Rosenberg v. Boyd, 14 Mo.App. 429. " Under a general allegation of negligence, the plaintiff cannot recover in this action, for this gives the defendant no notice of facts, and is only a conclusion." Leduke v. Railroad, 4 Mo.App. 485; Lee v. Mfg. Co., 6 Mo.App. 578; Harrison v. Ry. Co., 74 Mo. 364. (2) The issue made by the pleading was solely whether the defendant was guilty of negligence in allowing its right of way to become covered with dry grass and other combustible matter, and the court's instructions should have been confined to this. Ely v. St. L., K. C. & N. Railroad, 77 Mo. 34; Buffington v. Railroad, 64 Mo. 246; Eden v. H. & St. Jo. Ry. Co., 72 Mo. 212; Bell v. H. & St. Jo. Ry. Co., 72 Mo. 50; Price v. H. & St. Jo. Ry. Co., 72 Mo. 416; Waldhier v. H. & St. Jo. Ry. Co., 71 Mo. 514; Kenney v. H. & St. Jo. Ry. Co., 70 Mo. 252; Carson v. Cummings, 69 Mo. 325; Bank v. Murdock, 62 Mo. 70; Weil v. Greene Co., 69 Mo. 281. (3) The court's instructions were erroneously mere abstractions. Goodwin v. Ry. Co., 75 Mo. 73; Young v. Ry. Co., 79 Mo. 341; Zimmermann v. Ry. Co., 71 Mo. 490. (4) The objection to the leading character of the questions in the depositions came too late at the trial. Glasgow v. Ridgely, 11 Mo. 40; Walsh v. Agnew, 12 Mo. 525; Sheeler v. Speer, 3 Binney 130. (5) The court should not have permitted plaintiff to introduce evidence of other fires occurring in the neighborhood of the railway the same day as that on which the plaintiff's wheat was destroyed by fire, without some evidence that such fires were occasioned by the particular engine in controversy. 1 Redfield on Railways (3 Ed.) 455; Baltimore & Susquehanna Railroad v. Woodruff, 4 Md. 242; Cole v. H. & St. Jo. Ry. Co., 60 Mo. 233; Lester v. K. C., St. Jo. & C. B. Ry. Co., 60 Mo. 265. (6) Plaintiff could only recover such damages as were averred in his petition, and the admission of evidence tending to prove damages other than those alleged in his petition, was error. State ex rel. v. Roberts, 62 Mo. 388; Graves v. Severens, 40 Vt. 636; Gilbert v. Kennedy, 22 Mich. 117. (7) Whether plaintiff's failure to protect his stacks and other property was contributory negligence, should have been submitted to the jury by instructions. Carson v. Ry. Co., 7 A. & E. Railway Cases, 501; Linzee v. Railroad, 29 Minn. 411; Ry. Co. v. Brady, 17 Kas. 380; Kessee v. Ry. Co., 45 Wis. 222; 6 Allen 87; 48 Ill. 501; 78 Pa.St. 295; Coates v. Ry. Co., 61 Mo. 38; Brown v. Ry. Co., 37 Mo. 297; 25 Kas. 420. (8) The instruction of the court that the plaintiff is entitled to recover upon proof that the fire was communicated from the engine directly to plaintiff's premises, is not warranted by the allegations of the petition...

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