Hannibal & St. Joseph R.R. Co. v. Kenney

• Decision Date: 31 August 1867
• Citation: Hannibal & St. Joseph R.R. Co. v. Kenney, 41 Mo. 271 (Mo. 1867)
• Parties: HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Plaintiff in Error, v. PATRICK S. KENNEY, Defendant in Error.
• Court: Missouri Supreme Court

41 Mo. 271

HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Plaintiff in Error,

v.PATRICK S. KENNEY, Defendant in Error.

Supreme Court of Missouri.

August Term, 1867.

Error to Fifth District Court.

Carr, and Hall & Oliver, for plaintiff in error.

The petition states facts sufficient to constitute a cause of action-- Kimbacker v. Clev., Col. & Cin. R. R. Co., 3 Ohio, 172, n. ed., and authorities cited.

Vories & Vories, for defendant in error.

The only question in this case presented to the court is whether the petition sets up any facts or charges any acts, either of commission or omission, on the part of the defendant, which would by the law amount to negligence for which he would be responsible in damages. It is contended by the defendant that there are no facts or acts of negligence alleged. The pleader seems to rely on the facts simply that the defendant's mules were permitted to run at large upon the prairie, the common, as nothing else is alleged either directly or by inference; or, in other words, it seems to be assumed that it was the duty of the defendant to keep his mules up in his own enclosure, or that in default thereof he would be responsible for what they might do, or for where they might go, upon the enclosed land of others. This has never been held to be the law in this country, but the reverse has been invariably held, at least in the Western States, and in this State in reference to domestic animals--Canefox v. Crenshaw, 24 Mo. 199, and cases cited; Holliday v. Marsh, 3 Wend. 142; Bush v. Brainard, 1 Cow. 78, and note.

HOLMES, Judge, delivered the opinion of the court.

The plaintiff sues for damages done to the railroad and a running train in consequence of the defendant's mules getting upon the track. It is alleged that the plaintiff was the owner of the railroad, and was running a passenger express train on the road, at night, in the county of Caldwell, when a large number of mules belonging to the defendant, unlawfully and by reason of the defendant's negligence, entered and were upon the track at a point where it was not the duty of the plaintiff to erect and maintain fences, and that without any negligence on the part of the plaintiff the train came in contact with the mules, causing damage to the locomotive, train and road, to the amount of $20,000 for which judgment is asked. The case is presented here on demurrer to the petition for the reason that it does not state facts sufficient to constitute a cause of action. It is urged in support of the demurrer, that the petition does not state any facts nor charge any acts of omission or commission on the part of the defendant, which in law amounts to negligence for which the defendant is responsible in damages, and that it appears to be assumed that it was the duty of defendant to keep his mules in his own enclosure, and that in default thereof he would be responsible for any damage which they might do by going upon the enclosed land of others.

We cannot sustain...