Ayers v. St. Louis, M. & S. E. R. Co.

• Decision Date: 16 April 1907
• Citation: 101 S.W. 689,124 Mo. App. 422
• Parties: AYERS v. ST. LOUIS, M. & S. E. R. CO. et al.
• Court: Missouri Court of Appeals

101 S.W. 689

124 Mo. A. 422

AYERS v. ST. LOUIS, M. & S. E. R. CO. et al.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. APPEAL — HARMLESS ERROR — INSTRUCTIONS.

Where, in an action under the railroad double damage act (Rev. St. 1899, § 1105; Ann. St. 1906, p. 945) for damages to grain caused by hogs entering through holes in defendants' fence, the uncontradicted evidence showed that hogs passed through the fence, and defendants did not attempt to prove that the fence was a lawful one, an instruction as to defendants' duty to erect lawful fences, which does not state what a lawful fence is was not prejudicial error.

2. PLEADING — PETITION CURED BY VERDICT.

In an action under Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), for damages to grain caused by hogs entering plaintiffs' field through holes in a railroad fence, a petition which substantially follows the language of the statute, describing sufficiently the locus in quo to show that the railroads were required to erect and maintain fences along the sides of their road and cattle guards were needed, and states inferentially that the hogs got on the right of way over a defective cattle guard and from the right of way into plaintiff's field through a defective railroad fence, is sufficient after verdict and judgment, though it might have been open to attack by demurrer.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Wiley Ayers against the St. Louis, Memphis & Southeastern Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The action is based on section 1105, Rev. St. 1899 [Ann. St. 1906, p. 945] commonly called the "Railroad Double Damage Act." Omitting caption and signatures, the petition is as follows: "Plaintiff for cause of action states that on the 1st day of January, 1904, the defendant was, and still is, a corporation running trains and operating a railroad through La Font township, in the county of New Madrid, state of Missouri; that from January 1, 1904, up until the institution of this action, the plaintiff was in the actual possession of the following lots, tract, and parcel of land, to wit: N. E. ¼ of section 8, twp. 21, range 13 — that upon said lands he cultivated crops of cotton and corn; that the right of way, upon which is the track and grounds of defendant railroad company, runs along and through the said premises and at points in said township of La Font, New Madrid county, state of Missouri, where the defendant was and is by law required to erect and maintain good and lawful fences along the sides of its said railroad, and to construct sufficient cattle guards, and not at a public crossing, nor within the switch limits of any station, nor within the limits of any incorporated city, town, or village. Plaintiff, by reason of the failure and neglect of the defendant to erect and maintain the good and lawful fences aforesaid at said points where the road of the defendant passes through, along, and adjoining the premises of the plaintiff aforesaid, along the sides of its said road, and the failure and the neglect of the defendant railroad company to construct the sufficient cattle guards aforesaid, great numbers of animals, to wit, hogs, entered in and over the right of way, track, and...