Bowen v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1882
• Citation: 75 Mo. 426
• Court: Missouri Supreme Court
• Parties: BOWEN v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

75 Mo. 426

BOWEN

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Clinton Circuit Court.--HON. GEORGE W. DUNN, Judge.

AFFIRMED

G. W. Easley for appellant.

1. RAILROAD: double damages for killing stock: pleading.

HENRY, J.

This action was commenced before a justice of the peace, to recover double damages, under the statute, for a steer killed by a train of defendant's cars. The statement filed with the justice, alleged that: “The killing of the above described animal was done in the county of Clinton, Lafayette township, and State of Missouri; that the said defendant's fence was down, and in such condition as to allow animals to come and go inside of the inclosure at pleasure, contrary to the statutes of the State of Missouri, and by reason of such negligence of the defendant, and without any fault of the plaintiff, the said engine did strike and kill the plaintiff's steer, for which said plaintiff claims double damages, to the amount of $36, according to the statutes of the State of Missouri.” Plaintiff had a judgment in the justice's court, from which defendant appealed to the circuit court of Clinton county, where plaintiff again had judgment, and from that judgment defendant has appealed to this court, and contends that the statement did not allege, nor the evidence show, that the injury was occasioned by the failure of the company to erect and maintain fences.

In the case of Edwards v. K. C., St. Jo. & C. B. R. R. Co., 74 Mo. 117, the court observed: “There is no express allegation that the cow got upon the track in consequence of the failure of the defendant to erect and maintain fences and cattle-guards, as required by the statute, but we think the averment quoted, if not equivalent to such an allegation, will at least warrant an inference, that the cow got upon the track by reason of the failure to fence.” The allegation in the statement in that case was that: “Said cow did, without the fault of plaintiff, stray upon the track of said railroad at a point on the same where it, the said railroad, ran through and along cultivated lands, and where said road was not sufficiently or lawfully fenced or guarded by cattle-guards, and where there was no public crossing on said road.” That statement was held sufficient, and adhering to that decision, we hold the statement in this case sufficient.

2. INSTRUCTIONS.

The following instruction was asked by defendant and refused by the court: ...