Clem v. Quincy, O. & K. C. R. Co.

• Citation: 119 Mo. App. 245,96 S.W. 226
• Court: Court of Appeal of Missouri (US)
• Decision Date: 18 June 1906
• Parties: CLEM v. QUINCY, O. & K. C. R. CO.

96 S.W. 226

119 Mo. App. 245

CLEM v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

1. RAILROADS — KILLING STOCK — ACTIONS — PETITION — SUFFICIENCY.

A petition in an action against a railway company for killing stock, which alleges that the company failed to maintain lawful fences and cattle guards, as required by law; that by reason thereof plaintiff's animals, without his fault, went on the railroad track through the defective fences and cattle guards, at a point where the company was by law required to erect and maintain the same, is good after verdict, for it charges the company with a breach of duty imposed by Rev. St. 1899, § 1105, to erect and maintain fences and cattle guards of the standard fixed by section 3294.

2. SAME — INSTRUCTIONS — SUBMISSION OF MATTERS OF LAW.

An instruction in an action against a railway company for killing animals, submitting to the jury the question whether the railroad company maintained lawful fences and cattle guards, was erroneous because it permitted the jury to determine the law as well as the fact involved in the issue.

3. APPEAL — HARMLESS ERROR — ERRONEOUS INSTRUCTIONS.

Where, in an action against a railway company for killing animals, the evidence showed the failure of the company to maintain fences and cattle guards, as required by Rev. St. 1899, § 1105, and the issue was whether the animals entered the track through a gap in the fence, or from an adjoining field to a wagon road and thence on the right of way over a cattle guard, the error in submitting to the jury the question whether the railroad maintained lawful fences and cattle guards, was harmless, because, whether the animals entered the right of way through the open gap in the fence or over the cattle guard the railroad was liable.

Appeal from Circuit Court, Sullivan County; Jno. P. Butler, Judge.

Action by W. A. Clem against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. G. Trimble and Wilson & Clapp, for appellant. Wattenbarger & Bingham and R. E. Ash, for respondent.

JOHNSON, J.

In the first count of the petition plaintiff seeks to recover double damages under the provisions of section 1105, Rev. St. 1899, for the killing of two horses by defendant. He had judgment on this count in the sum of $470, double the amount of the verdict returned, and defendant appealed. In addition plaintiff had judgment on the causes of action pleaded in the remaining two counts of the petition, but defendant does not claim that error was committed in the trial of either of them, and our inquiry will be confined to the cause pleaded in the first count.

First, it is insisted by defendant that no cause of action is pleaded. The allegations criticised are as follows: "Plaintiff further states that on said 28th day of November, 1903, defendant failed, neglected, and refused to keep and maintain lawful fences along the sides of its railroad track and to construct and maintain cattle guards, as required by law, where said road passes through, over, and across, the farm and cultivated fields of plaintiff. That by reason of defendant's failure and neglect to keep and maintain proper and lawful fences along the sides of its said track and to construct and maintain cattle guards as provided by law inclosing its railroad on plaintiff's farm, the horses aforesaid, owned by plaintiff and by him kept on said farm, without the fault or procurement of plaintiff went upon defendant's railroad, and upon the track thereof through, and over, said defective fences and cattle guards where said railroad passes through plaintiff's farm, in Sullivan county, Mo., at a point where defendant was by law required to erect and maintain good and lawful fences along the sides of its said railroad and to construct and maintain cattle guards, and not at the crossing of any public highway or other road and not within the limits of any incorporated town or city." No attack was made on this pleading by demurrer or motion, but defendant answered to the merits. At the trial defendant made the general objection that this count of the petition fails to state a cause of action, but did not state the ground of the objection. In the motion in arrest, the objection was renewed. It is supported here by the argument that the pleader should have stated in what manner the fences and cattle guards were defective and that the omission of such averment is not supplied by the statement that defendant "failed, etc., to keep and...