Dryden v. Smith
Decision Date | 31 October 1883 |
Citation | 79 Mo. 525 |
Court | Missouri Supreme Court |
Parties | DRYDEN v. SMITH, Receiver of the Burlington & Southwestern Railway Company, Appellant. |
Appeal from Linn Circuit Court.--Trial before CHAS. L. DOBSON, ESQ., sitting as Special Judge.
REVERSED.
Smith & Krauthoff with L. T. Hatfield for appellant.
Stephens & Smith for respondent.
This suit was instituted before a justice of the peace to recover damages for killing a steer, by a locomotive and train of cars belonging to and operated by defendant. That portion of the statement necessary to a determination of this cause is as follows: Plaintiff had judgment for double damages before the justice of the peace, and defendant appealed to the circuit court, where judgment was again rendered for plaintiff as asked in the statement.
At the trial in the circuit court defendant moved to dismiss the cause for the reason that plaintiff's statement did not state facts sufficient to authorize a recovery, in that it did not show that the alleged injury occurred at a point on said railway where the same was not and should have been fenced, or that the injury was occasioned by a failure to fence said railroad. The motion was overruled and defendant excepted. It does not appear from the foregoing statement, nor can it be inferred, that a failure to fence the railroad was the cause of the killing. Under numerous rulings of this court the statement is therein defective. Luckie v. C. & A. R. R. Co., 67 Mo. 245; Bates v. St. L., I. M. & S. R'y Co., 74 Mo. 60; Sloan v. Mo. Pac. R'y Co., 74 Mo. 47. The revised code of 1879 took effect before the trial of this case, which was in December, 1879; and under the ruling of this court in King v. C., R. I. & P. R'y Co., 79 Mo. 328, the plaintiff would have the...
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