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

• Decision Date: 30 April 1883
• Citation: 77 Mo. 591
• Court: Missouri Supreme Court
• Parties: CHUBBUCK v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

77 Mo. 591

CHUBBUCK

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

Supreme Court of Missouri.

April Term, 1883.

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

REVERSED.

Geo. W. Easley for appellant.

Johnson & Dilley for respondent.

HOUGH, C. J.

This action was begun before a justice of the peace to recover damages for the killing of plaintiff's steer on July 8th, 1879, which killing was alleged to have been occasioned by the failure of the defendant to maintain good and substantial fences and cattle-guards, as required by section 43 of the Railroad Corporation Law. After alleging generally the failure of the defendant to maintain fences and cattle-guards, the negligence of the defendant in that regard, it more particularly alleged as follows: “That the defects in said fences and cattle-guards had existed for a long time prior to the 8th day of July, 1879, and the defendant, its agents and servants had knowledge of said defects.” The testimony was conflicting as to whether the steer was struck on the road-crossing or inside the cattle-guards. As to the condition of the fences, one witness testified that “the fence had been down all summer,” and that the section boss knew it. It appears, also, that the cattle-guards were out of order, but it does not appear how long they had been so, or that the agents of the defendant knew of their defective condition.

At the instance of the plaintiff, the court instructed the jury that if the steer got upon defendant's track, and was killed, at a point where the track passed along, through or adjoining inclosed or cultivated fields, by reason of the failure and neglect of defendant to maintain suitable and sufficient cattle-guards, they should find for the plaintiff.

At the instance of the defendant, the jury were instructed that, if plaintiff's steer was struck and injured while on the road-crossing, they would find for the defendant. There was a verdict and judgment for plaintiff.

1. RAILROADS: liability for killing stock: complaint.

It is contended by the defendant that the extract from the complaint above quoted contains no sufficient allegation of negligence in that it fails to state that the alleged defects had been permitted to remain longer than was necessary, by the exercise of reasonable diligence, to discover and repair them. It is the doctrine of this court that a general allegation of negligence is sufficient; that is, it is sufficient to aver that the defendant negligently performed or negligently omitted to perform some act, the performance or non-performance of which caused the injury complained of. Mack v. St Louis, K. C. & N. R. R. Co., 77 Mo. 232. The complaint in this case, apart from the extract above quoted, alleges the failure of ...