Busby v. St. Louis, Kansas City & Northern Ry. Co.

Citation81 Mo. 43
PartiesBUSBY v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
Decision Date31 October 1883
CourtUnited States State Supreme Court of Missouri

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

Wells H. Blodgett and Geo. S. Grover for appellant.

The statement upon which the cause of action was tried below, was fatally defective under sections 809 or 2124 of the statute, or at common law. Johnson v. Railroad Co., 76 Mo. 554; Mayer v. Union Trust Company; Nance v. Railroad Co., 79 Mo. 196; Cecil v. Railroad Co., 47 Mo. 246; Luckie v. Railroad Co., 67 Mo. 245; Cunningham v. Railroad Co., 70 Mo. 202; Burton v. Railroad Co., 30 Mo. 375; Quick v. Railroad Co., 31 Mo. 400; Scott v. Railroad Company; Turner v. Railroad Co., 78 Mo. 578. The evidence was insufficient to support a verdict. The defendant was entitled to a reasonable time in which to repair the fence after having knowledge of a defect therein, or after that period had elapsed in which, by the exercise of reasonable diligence, it could have had knowledge of such defect, and without proof as to this, plaintiff was not entitled to recover. Shearman & Redfield on Neg., § 459; Clardy v. Railroad Co. 73 Mo. 578; Case v. Railroad Co., 75 Mo. 668. The fence in question was a partition fence, erected on the division line and owned jointly by the parties, and plaintiff and defendant having failed to keep it in repair, neither party can recover of the other any damages resulting from such neglect. R. S. 1879, §§ 5661, 5656; Ells v. Railroad Co., 48 Mo. 231; Jackson v. Rutland, 25 Vt. 15; 2 Waterman on Trespass, pp. 297, 304; Rust v. Low, 6 Mass. 101; Walker v. Watrous, 8 Ala. 493; Tewksbury v. Bucklin, 7 N. H. 518; Cheatham v. Hampson, 4 D. & F. 318; Queen v. Bucknall, 2 Ld. Raym. 804; Rider v. Smith, 3 D. & E. 766; Mayer v. Arnold, 4 Met. 589; Knox v. Tucker, 48 Me. 373; Sturtevant v. Morril, 33 Me. 62; Weber v. Clossom, 35 Me 26; Railroad Co. v. Infirmary, 32 Ohio St. 566; Cecil v. Railroad Co., 47 Mo. 249.

No brief for respondent.

PHILIPS, C.

This action was instituted in a justice's court, and on appeal tried finally in the circuit court. The statement filed with the justice is as follows:

Plaintiff says that defendant is a corporation organized under and by virtue of the laws of the State of Missouri, and as such corporation, as aforesaid, is engaged in operating a railroad from St. Louis, Missouri, to Kansas City, in Missouri, the line of said road passing through Carrollton township, in Carroll county, Missouri. That on or about the month of October, 1878, defendant had not erected and maintained on the sides of its said road, good and substantial fences, where the same passes along or through inclosed or cultivated fields and lands, suitable or sufficient to prevent cattle or other animals from getting on to said road, and that on or about said month of October, 1878, one yearling heifer of the value of $15, the property of this plaintiff, escaped and got upon said railroad by reason of the said defendant's failing to erect and maintain such fence as aforesaid, and was then and there run upon and over by defendant's agents and servants, and was thereby killed in Carrollton township, county and State aforesaid, wherefore plaintiff asks judgment for said amount of $15 with costs of suit.”

The cause was submitted to the court, sitting as a jury, for trial upon the following agreed statement of facts:

“1st. That defendant is a corporation engaged in operating trains of cars, and that the line of said road passes through Carrollton township, in Carroll county, Missouri. 2nd. That the heifer is the property of plaintiff, and of the value of $15. 3rd. That heifer was killed _____ day of October, 1878, by defendant's engine, etc. 4th. That she was killed in Carrollton township. 5th. That prior to the killing defendant had erected a good and substantial fence between the right of way of defendant and inclosed field occupied by plaintiff, but that at the time of killing, defendant wholly failed to maintain the fence, separating the right of way of defendant and the inclosed field occupied by plaintiff, in condition to prevent cattle from getting on same. 6th. That said heifer, by reason of such failure, escaped through said fence and got on defendant's railroad and was there killed. 7th. That the fence belonged to defendant, and the fence inclosing plaintiff's field was joined to said fence by defendant's consent. 8th. That both plaintiff and defendant had knowledge that such fence was out of repair, at and prior to the killing. 9th. That defendant adopted act of 1868, amending charter of said defendant requiring defendant to fence sides, etc.”

No instructions were asked or given in the case. The court found for the plaintiff in the sum of $15, and rendered judgment accordingly. The defendant has brought the case here on appeal.

I. The first error assigned for the reversal of the judgment is, that the statement is insufficient to support the judgment. The sufficiency of these statements has been the subject of much discussion in this court. Without re-stating the points of controversy, or reviewing the many cases decided, it may be affirmed that the latest adjudications on this subject have quite clearly established the rules by which it is not difficult to determine the sufficiency of this statement. In Edwards v. Railroad Co., 74 Mo. 122, the court say: “There is no express allegation that the cow got upon the track in consequence of the failure of the defendant to erect or 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 case presented is not one of an entire failure to state a cause of action, * * but the case is one where the cause of action is defectively stated, and such defective statement is good after verdict, evidence having been given in support of it which cured the defect.” And in later cases it has been held substantially, that where enough is averred in the statement from which it may be reasonably inferred that the animal got upon the track in consequence of the failure of the road to fence at that point, this will be sufficient after verdict, when supported by the requisite proof. Nance v. St. Louis, I. M. & S. R'y Co., 79 Mo. 196; Jackson v. St. Louis, I. M. & S. R'y Co., 80 Mo. 147. The allegations of the statement in question are, that the defendant had neglected to erect and maintain good and substantial fences, where the road runs along and through inclosed and cultivated fields and lands, etc., and that plaintiff's heifer got upon said railroad “by reason of the defendant's failure to erect and maintain such fence as aforesaid, and was then and there run over and killed,” etc. It is distinctly averred that the injury occurred “by reason of defendant's failure to erect and maintain such fence as aforesaid.” The inference clearly is, that the animal got upon the track at the place where the company had neglected to fence. It is further alleged that the animal was “then and there killed.” The agreed statement of facts is: “That said heifer, by reason of such failure, escaped through said fence and got on defendant's railroad and was there killed.” So the verdict was amply sustained by the proof, and, after verdict, we think there is sufficient in the statement to support the judgment.

II. It is insisted by appellant, that the evidence did not go far enough to fix a liability on defendant, because it did not affirmatively appear, that a sufficient length of time had elapsed, after the fence got out of repair, to allow defendant an opportunity to make the necessary repair. This objection is not well taken. If the fence was down, and not a lawful fence at the time the animal went upon the track through it, the inference would be, that defendant, upon whom devolved the duty, was not maintaining a lawful fence. Aside from this, the...

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