Campbell v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1883
• Citation: 78 Mo. 639
• Parties: CAMPBELL v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 639

CAMPBELL

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

T. J. Portis and Smith & Krauthoff for appellant.

M. J. Leaming and Edwards & Davison for respondent.

WINSLOW, C.

This is an action under the double damage section of the statutes, originally commenced before a justice of the peace of Marion township, Cole county, Missouri. There was a judgment by default before the justice, from which the defendant, after the usual manner, duly perfected an appeal to the circuit court. In the circuit court, after various objections to the complaint and the introduction of testimony had been made by defendant, and overruled by the court, there was a trial by jury, which resulted in a verdict for plaintiff for $30; which verdict was doubled by the court, and a judgment for $60 rendered against defendant; to reverse which defendant brings the case here by appeal. The following is a copy of the complaint:

“Plaintiff states that defendant is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri; that on the -- day of August, 1879, at Marion township, in Cole county, Missouri, at a point on the track of defendant's railroad where the same passes along and adjoining an inclosed and cultivated field, and not a private or public crossing of said road, the defendant by its agents, servants and employes, running its locomotive and train of cars, ran the same upon and over the cow of plaintiff, of the value of $45, and thereby killed said cow; that the defendant failed and neglected to erect and maintain good and sufficient fences at the sides of its road at the point where said cow got upon the track of said road and was killed, and failed and neglected to keep, construct and maintain a cattle-guard at a certain crossing of defendant's railroad at said inclosed and cultivated field in said Marion township, suitable and sufficient to prevent cattle, mules and all other animals from getting on the railroad of defendant.” Prayer for double damages.

The first objection alleged against this complaint is, that it does not state that the injuries complained of were caused by the failure to construct sufficient fences and cattle-guards.

It is alleged in the complaint that the accident occurred at a point on the road where the same “passes along and adjoining an inclosed and cultivated field, and not a private or public crossing of said road;” also, that defendant “failed and neglected to erect and maintain good and sufficient fences at the sides of its road at the point where said cow got upon the track and was killed, and failed and neglected to keep, construct and maintain a cattle-guard at a certain crossing of defendant's railroad at said inclosed and cultivated field.”

1. DOUBLE DAMAGE ACT; killing stock: pleading.

It is the settled doctrine of the cases cited below, that the complaint need not specifically allege that the injury was occasioned by the failure to fence or maintain cattle-guards; but that it will be sufficient if it appear, inferentially, from the allegations of the complaint. The allegations of this complaint are as full and specific as many that have been sustained in the cases alluded to. It is alleged that the cow was killed at a point where the company was bound to fence or maintain a cattle-guard, and that she “got upon the track of said road and was killed,” at that point; and that the company had failed to erect and maintain a cattle-guard where its road entered said field. It may be very clearly inferred from these statements that the cow was killed by reason of these failures. This complaint is informal, it is true. The better practice would be for attorneys, in drawing these complaints, to take necessary pains and insert the few negative averments required by the statute; and for attorneys on the other side to pay closer attention to the merits than these questionable technicalities. This statute is penal in its character, and the companies are entitled to a more definite statement under it than is usual in ordinary cases before justices. The following ca...