Busby v. St. Louis, Kansas City & Northern Ry. Co.
Citation | 81 Mo. 43 |
Parties | BUSBY v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant. |
Decision Date | 31 October 1883 |
Court | United 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.
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:
The cause was submitted to the court, sitting as a jury, for trial upon the following agreed statement of facts:
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: 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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