Bricker v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 391
• Parties: BRICKER v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 391

BRICKER

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cass Circuit Court.--HON. N. M. GIVAN, Judge.

REVERSED.

Robert Adams and G. N. Bowles for appellant.

The statement filed with the justice and upon which this case was tried in the circuit court charges the killing and injury to cattle at one time and the killing of five hogs at different times upon which there was a general verdict and judgment. At the trial the defendant objected to the introduction of any evidence, one of the grounds being that the statement charges four distinct and separate causes of action in one count, and again objected thereto by motion in arrest of judgment. The court erred in overruling the objection and the motion in arrest. Owens v. Hannibal & St. Joseph R. R., 58 Mo. 386, and cases cited in the opinion of the court. Defendant's second instruction should have been given. The only negligence imputed to defendant was a failure to fence its track. The statute of this state did not require any person to fence against swine in any county in which it should be unlawful for the same to run at large. Sec. 12, Session Acts of 1879, page 160; Ry. Co. v. Lea, 2 Kansas 353; Ry. Co. v. Landers, 24 Kansas 406; Ry. Co. v. Dyche, 28 Kansas 200; Ry. Co. v. Mossman, 30 Kansas 336.

F. P. Wright for respondent.

The statement is in the usual manner of stating several causes of action before justices of the peace and the verdict and judgment are, also, in the usual form. Farrell v. Union Trust Co., 77 Mo. 475. The case of Owens v. R. R., 58 Mo. 486, originated in the circuit court and is not applicable here.

MARTIN, C.

This is an action for double damages under section 809, Revised Statutes, 1879, for injuring and killing stock. The suit was commenced before a justice of the peace, from whose decision it was appealed to the circuit court. The trial in said court resulted in a verdict for $91.66 in favor of plaintiff, upon which judgment was entered for double that amount. It is alleged in the statement of suit that on the 8th day of August, 1881, the defendant by its agents and servants while running a locomotive and train of cars over their road in Peculiar township ran against, struck and crippled and rendered worthless one milch cow and one steer, each of the value of $40, to the damage of plaintiff in the sum of $80.

And that on the 5th day of November, 1881, the defendant by its agents, servants and employes, while running a locomotive and train of cars over its road in Peculiar township, struck and killed two of plaintiff's hogs of the value of $4 each, to plaintiff's damage in the sum of $8. And that on the 7th day of December, 1881, the defendant by its agents, servants and employes, while running a locomotive and train of cars over their road in Peculiar township, ran against, struck and killed three of plaintiff's hogs of the value of $5 each, to the damage of plaintiff in the sum of $15. The statement goes on to allege that said cow, steer and all of said hogs came upon said road where it passes through plaintiff's enclosed fields and where there was no highway crossing; and that the defendant failed to maintain lawful fences at the points where they came on and were injured or killed, and that they were injured or killed as aforesaid by reason of defendant's failure to maintain lawful fences on the sides of its road.

The defendant at the trial objected to the introduction of any evidence for insufficiency of the statement and because it contained three distinct causes of action in one count. These objections were overruled and the trial before the jury resulted in the general verdict, as hereinbefore stated. The defendant then moved in arrest, stating, among other reasons, that a general verdict on the three distinct causes of action was erroneous and should be set aside. From the action of the court in overruling this motion it brings...