Creason v. Missouri, Kansas & Texas Ry. Co.

• Decision Date: 10 January 1910
• Parties: C. W. CREASON, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

124 S.W. 572

140 Mo.App. 33

C. W. CREASON, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

January 10, 1910

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

Reversed and remanded.

M. J Lilly for appellant.

(1) The court erred in sustaining defendant's demurrer to plaintiff's petition. The petition alleges facts showing plaintiff entitled to recover of defendant double the value of the cow killed, under section 1105, Revised Statutes 1899 which said section, as applied to the circumstances attending the killing of plaintiff's cow, is as follows: "Any railroad corporation running or operating any railroad in this State, shall erect and maintain lawful fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields . . . and also to construct and maintain cattleguards, where fences are required, sufficient to prevent horses, cattle, mules and all other animals from getting on the railroad; and until fences . . . and cattle-guards as aforesaid shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done by . . . engines or cars to horses, cattle, mules or other animals on said road . . occasioned . . . by the failure to construct or maintain such fences or cattle-guards." (2) There is no merit in defendant's fourth special ground of demurrer, to-wit: "Plaintiff failed to aver anywhere in his petition that the point where the animal went upon defendant's track was at a point where defendant was by law required to fence." While it is necessary for the petition to allege by direct averment or necessary implication, that the animal killed got upon defendant's railroad track at a point where, by law, the defendant was required to erect and maintain fences, the petition may make said allegation in the words of the statute, imposing the duty upon railroad companies to erect and maintain fences. Summers v. Railway, 29 Mo.App. 41; Manz v. Railroad, 87 Mo. 278; McIntosh v. Railroad, 26 Mo.App. 377; Williams v. Railroad, 80 Mo. 597; Dorman v. Railroad, 17 Mo.App. 337; Mayfield v. Railroad, 91 Mo. 296; Ringo v. Railroad, 91 Mo. 667. (3) The petition states a cause of action under section 1105, Revised Statutes 1899, known as the "double damage act." All the facts prescribed by the statute for a recovery of double damages under said section appear by express averment or by necessary implication from such express averments, and that is sufficient. Lainiger v. Railway, 41 Mo.App. 165; Williams v. Railroad, 80 Mo. 597.

E. O. Doyle for respondent.

(1) There can be no recovery for double damages under section 1105, Revised Statutes 1909, where the petition fails to directly aver that the animal got upon the track at a point where the railroad company was required by law to erect and maintain fences and sufficient cattle-guards or to exclude the implication that the animal did not go on the track at a point where the railroad company was not required by law to erect and maintain fences and sufficient cattle-guards, such as public crossings, incorporated towns and cities, towns unincorporated but platted, depot grounds and grounds used for switching purposes. Norton v. Railway, 48 Mo. 387; Bates v. Railway, 74 Mo. 60; Johnson v. Railway, 76 Mo. 553; Nance v. Railway, 79 Mo. 197; Asher v. Railway, 79 Mo. 432. (2) Under section 1105, Revised Statutes 1899, a petition that fails to state a total absence of a fence or in what respect the fence is defective or the cattle-guard insufficient, at the point where the animal went upon the railroad track, before proof and verdict, is bad on demurrer. Clem v. Railroad, 119 Mo.App. 245.

OPINION

ELLISON, J.

This action was instituted in the circuit court of Randolph county to recover double damages for the killing of plaintiff's cow by one of defendant's engines. The case is founded on section 1105, Revised Statutes 1899, which requires railway companies to erect and maintain fences and cattle-guards. The trial court sustained a ...