Duncan v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 28 February 1887
• Citation: 3 S.W. 835,91 Mo. 67
• Parties: Duncan v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

3 S.W. 835

91 Mo. 67

Duncan v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

February 28, 1887

Appeal from Madison Circuit Court. -- Hon. J. D. Fox, Judge.

Affirmed.

T. J Portis and Smith, Silver & Brown for appellant.

(1) The circuit court erred in its refusal of defendant's motion to require the plaintiff to elect on which cause of action stated in his complaint he would proceed to trial; that is to say, whether for a failure on the part of defendant to erect and maintain lawful fences on the sides of its railroad, or a failure to erect and maintain proper cattle guards. R. S sec. 3512; Bliss on Code Plead., sec. 125; Mooney v Kennett, 19 Mo. 551; Otis v. Bank, 35 Mo. 128; Christal v. Craig, 80 Mo. 367. This is a penal action, and hence there is even greater strictness of construction, as to the allegata, required than in ordinary cases. Manz v. Railroad, 87 Mo. 278. (2) The first instruction asked by the defendant should have been given. Binicker v. Railroad, 83 Mo. 660; Laney v. Railroad, 83 Mo. 466; Harrington v. Railroad, 71 Mo. 384; Redmore v. Railroad, 81 Mo. 227. The second instruction asked by defendant was the law, and should have been so declared. Harrington v. Railroad, 71 Mo. 384; Berry v. Railroad, 65 Mo. 172. (3) It must needs follow, from the foregoing considerations, that the defendant's third instruction should have been given. Harrington v. Railroad, 71 Mo. 384; Johnson v. Railroad, 80 Mo. 624.

Robt. Anthony and E. D. Anthony for respondent.

(1) Only one cause of action was alleged in the complaint. There must be a separate assessment of damages for each cause of action. There could be only one assessment in this case. Plaintiff simply alleged in full the failure on the part of defendant to comply with Revised Statutes, section 809. He is required to make such allegation or his petition would be defective. Cattle guards and gates are a part of the lawful fence contemplated by the law. R. S., sec. 809; Morrow v. Railroad, 74 Mo. 82; Revelle v. Railroad, 74 Mo. 438; Hudgens v. Railroad, 79 Mo. 418. (2) The first instruction asked by defendant was properly refused, under the evidence. This gate never had proper latches or hooks. The law does not allow the company to use, as a fastening, a rail or a stick, which will permit the gate to be blown open by every north wind. R. S., sec. 809. (3) The second instruction asked by the defendant was not the law, and was properly refused by the court. The animal had a right to be on the commons onto which this gate opened. The gate at this point was a part of the fence, and it was the duty of the company to maintain a lawful fence at this point, with gates, openings, etc. R. S., sec. 809; Binicker v. Railroad, 83 Mo. 660; Peddicord v. Railroad, 85 Mo. 160; Harrington v. Railroad, 71 Mo. 384; Berry v. Railroad, 65 Mo. 172. (4) The third instruction asked by the defendant was not the law. Although gates at private farm crossings are made for the benefit of adjoining land owners, yet, if a stranger's animal get through them, because of the neglect of the company, from a field or commons where the animal has a right to be, then the company is liable to such stranger in double damages. Binicker v. Railroad, 83 Mo. 660; Johnson v. Railroad, 80 Mo. 621. (5) The evidence was sufficient. Direct evidence is not required. Gee v. Railroad, 80 Mo. 281. (6) Plaintiff's statement of his cause of action is sufficient. Marrett v. Railroad, 84 Mo. 413.

OPINION

Black, J.

1. The plaintiff's mare got upon the defendant's road through a gate in defendant's fence, along the road where it passes through unenclosed lands, and was injured by the cars. The complaint states that the defendant failed to maintain lawful fences, cattle guards, gates, and openings, etc.; and the defendant moved to require plaintiff to elect upon which cause of action he would proceed. There is but one cause of action stated, or attempted to be stated, in the complaint. The plaintiff may allege a failure to maintain fences and cattle guards, and proof of either, with proof of the other necessary averments, will entitle him to recovery.

2. Defendant's first refused instruction is, in substance that if the gate was closed and fastened with a rail the night before the mare got on the road, and during the night was opened by some person or means, then, before the plaintiff can recover, the evidence must show that sufficient time elapsed, after the gate was opened and before the mare got on the track, in which defendant, by the use of reasonable care, could have discovered...