Corcoran v. The Wabash Railroad Co.
| Decision Date | 01 November 1909 |
| Parties | JOHN W. CORCORAN, Appellant, v. THE WABASH RAILROAD COMPANY, a Corporation, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Nodaway Circuit Court.--Hon. W. C. Ellison, Judge.
AFFIRMED.
Judgment affirmed.
B. L Growney and T. A. Cummins for appellant.
"That the petition is insufficient to support a judgment." Such an objection can only be interposed at the trial, where the petition fails altogether to state any cause of action and not to the case where a cause of action is defectively stated. Clem v. Railroad, 74 Mo. 298; Crane v Railroad, 78 Mo. 588; Bank v. Leyser, 116 Mo 51; Hurst v. Ash Grove, 96 Mo. 173. It is the doctrine of this court that it is sufficient to aver that defendant omitted to perform some act in the line of its duty, the non-performance of which caused the injury. Mack v. Railroad, 77 Mo. 232; Chubbuck v. Railroad, 77 Mo. 591; Vancleve v. St. Louis, 159 Mo. 579; Gale v. Car & T. Co., 177 Mo. 449. The action may not be under either section of statute, but plaintiff may recover at common law if he show the negligent act of defendant, was the proximate cause of the injury. Wasin v. McCook, 83 Mo.App. 483. It is well-settled law that the point at which the animal enters upon the right of way determines the liability of the railroad and not the place where the stock is killed. Pearson v. Railroad, 33 Mo.App. 543; Hurd v. Chappell, 91 Mo.App. 317; Acord v. Railroad, 113 Mo.App. 93.
James L. Minnis and Shinabarger, Blagg & Ellison for respondent.
Petition does not allege a failure to enclose tracks. The petition is insufficient to support a judgment under either section 1105, Revised Statutes 1899 (), or under section 2867, Revised Statutes 1899 (), for the reason that it does not state that the railroad company failed to enclose its track with a lawful fence, but, on the contrary, affirmatively alleges a failure to fence a one hundred and fifty by two hundred foot strip of land entirely on the north side of the track, which, if fenced, would still leave the track as exposed as before. This is fatal as sections 1105 and 2867 both contemplate that the railroad track be enclosed with a lawful fence. R. S. 1899, secs. 1105, 2867; Bridges v. Railroad, 132 Mo.App. 579; Acord v. Railroad, 113 Mo.App. 96. Petition does not charge that road ran through, along or adjoining enclosed or cultivated fields or unenclosed lands. The petition is also insufficient to sustain a judgment under section 1105 because it neither alleges substantially in the language of the statute, that the road, at and without endangering the lives and limbs of its employees in the discharge of their duties about the track, etc. Acord v. Railroad, 113 Mo.App. 95; Smith v. Railroad, 111 Mo.App. 414; Bridges v. Railroad, 132 Mo.App. 579. If the point at which it is complained that the railroad company failed to fence, be outside of an incorporated or platted town, then the railroad company is either legally bound to fence by section 1105, or is absolutely forbidden to fence by the necessities of traffic or the safety of its employees. There is no opportunity for exercising an option in such circumstances. Duncan v. Railroad, 111 Mo.App. 199; Morris v. Railroad, 58 Mo. 78.
A stallion and two fillies owned by plaintiff strayed to defendant's railroad track at a point near the incorporated town of Clyde and were killed by a passing train. Plaintiff brought this suit to recover single damages for the killing of the animals. The cause was tried to a jury resulting in a verdict and judgment for plaintiff. Afterward the court sustained defendant's motion for a new trial on the grounds: First. That the petition is insufficient to sustain a judgment. Second. That while there was evidence tending to prove the recitals of alleged facts in plaintiff's instructions numbered one, two and three, each of said instructions erroneously declare the law applicable to the alleged facts therein recited." Dissatisfied with this ruling, plaintiff brought the case here by appeal. The evidence is not in the record before us and the facts we must consider in the determination of the questions of law argued in the briefs are to be gleaned from the petition and the instructions mentioned in the order granting a new trial.
The petition is as follows: Plaintiff for his second cause of action states that on May 13, 1906, defendant was and now is a corporation running and operating a railroad through Nodaway county, State of Missouri, and by and through a station designated Clyde on its said railroad in said county; that adjoining its depot grounds at said station to the west thereof and on the north side of its track or roadbed, defendant maintained a scope of right of way one hundred and fifty feet by two hundred feet, unused by defendant and unfenced, forming a pocket or cul-de-sac, and at date herein complained of, was overgrown with succulent grasses, inviting to live stock, to graze thereon. That on said date, in said county, in close proximity to said station of Clyde, plaintiff was the owner of certain live stock, to-wit: One iron gray stallion, two years old, two more colts one year old, commonly called "fillies," said stallion of the value of three hundred dollars and said fillies of the value of one hundred dollars each.
That on said date said stallion and fillies strayed and went in and upon the right of way grounds and railroad track of defendant, at a point immediately west of said station on the one hundred and fifty by two hundred feet of unfenced right of way described aforesaid, and from thence on to the unfenced track of defendant at said point and place, and were struck by a locomotive and train of cars, then and there run and operated by defendant, killing one of said fillies outright and so injuring and maiming the said stallion that he died soon thereafter, and did cripple and injure the other filly so as to render her wholly worthless and valueless to plaintiff. And that defendant might have fenced and should have fenced the space of right of way aforesaid so as to prevent horses and other live stock from going thereon, but had negligently failed to do so. That said portion of said right of way and track was not within the limits of any incorporated or platted town or village and not within necessary switch limits. That wholly by reason of said right of way being unfenced, said stock (stallion and fillies) did go thereon, and from thence on to the track of defendant, and were injured and killed as aforesaid to plaintiff's damage in the value of the animals aforesaid, to-wit, the sum of five hundred dollars.
Wherefore he prays judgment for said sum of five hundred dollars and costs of suit therefor."
The three instructions given at the request of plaintiff and afterward pronounced to be erroneous in the order granting a new trial are as follows:
"1. The court instructs the jury that, though you may believe from the evidence that plaintiff's horses were killed or injured within the switch limits of defendant's station of Clyde and that said switch limits were not in excess of such reasonable length as to enable defendant to conveniently carry on its business at said station, yet you are instructed that, beyond the necessary station or depot grounds at said station, the defendant was required to fence its right of way on the sides of its lines of track so near to its line of track as not to interfere with its employees or endanger their safety in making switches and handling its trains provided same is outside of the corporate limits of said station and not intersected by any platted streets or public crossing; and if you find from the evidence that, beyond the limits of reasonably necessary depot or station ground at said station, and outside of the corporate line or limit, there extended a strip of right of way about one hundred and fifty feet wide parallel with said track on the north side thereof to the west switch limit or cattle-guard a distance of about two hundred feet and that the same including the track was unfenced and open, and said strip was not reasonably necessary for use in connection with its switch limits as aforesaid, and that said strip of right of way...
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