Johnson v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1883
• Parties: JOHNSON v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

80 Mo. 620

JOHNSON

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. J. P. STROTHER, Judge.

REVERSED.

Smith & Krauthoff with T. J. Portis for appellant.

The plaintiff's statement was insufficient. It does not directly, or by implication, state that the alleged failure to fence in any wise occasioned the injury sued for. Hudgens v. H. & St. J. R. R. Co., 79 Mo. 418; King v. C., R. I. & P. R. R. Co., 79 Mo. 328; Luckie v. Railroad Co., 67 Mo. 245; Cunningham v. Railroad Co., 70 Mo. 202; Bates v. Railroad Co., 74 Mo. 60. Neither is it alleged, nor to be inferred, that the alleged getting upon the track and killing did not occur within the limits of an incorporated town or city. Schulte v. Railroad Co., 76 Mo. 324. The evidence showed that the plaintiff was not an adjoining proprietor, and that his animal was not lawfully upon land belonging to such proprietor. The horse was in a pasture belonging to one Cox, which did not adjoin the defendant's railroad. From this it escaped into a field belonging to one Barnett, and from that into a field belonging to one Gordon, and thence to the railroad. There is no evidence that the fences inclosing the fields or pastures of Cox, Barnett and Gordon, respectively, were not lawful. It was incumbent upon the plaintiff to show their defective character, and having failed to do so, the defendant's demurrer to the evidence ought to have been sustained. Berry v. Railroad Co., 65 Mo. 172; Harrington v. Railroad Co., 71 Mo. 384. The second instruction given for the plaintiff is erroneous. Clardy v. Railroad Co., 73 Mo. 576; Case v. Railroad Co., 75 Mo. 668; Walther v. Railroad Co., 78 Mo. 617.

No brief for respondent.

EWING, C.

This suit was instituted before a justice of the peace, to recover double damages for the killing of a horse by a locomotive and train of cars of defendant, in August, 1879, upon the following statement:

“Plaintiff states that the defendant is an incorporated company under the laws of this State, that on the ___ day of August, 1879, at Lexington township, in Lafayette county, Missouri, at a point on the track of defendant's railroad in said township, where the same passed along and adjoining inclosed and uninclosed lands, and not at a private or public crossing of said road, the defendant, by its agents, running its locomotive and train of cars, run the same upon and over a black horse, the property of plaintiff, and of the value of $75, and thereby killed said horse; that defendant failed and neglected to erect or maintain good or sufficient fences on the sides of its road at the point where said horse got upon the track of said road and was killed, and that by reason of said killing, and by virtue of the 43rd section of chapter 63 of the General Statutes of Missouri, as amended by Laws of 1877. Whereupon plaintiff asks judgment for said sum of $75, the value of said horse, and that upon final judgment the same be doubled as provided by statute.”

The plaintiff had judgment before the justice, and defendant appealed to the circuit court, where on a trial de novo, judgment was again rendered against defendant, from which it has appealed to this court.

Upon the trial in the circuit court defendant objected to the introduction of any testimony, alleging that the statement did not state facts sufficient to constitute a cause of action. The objection was overruled, and defendant excepted at the time. The same objection is urged in this court.

The evidence shows that plaintiff's horse was in a pasture of one Cox, whose land does not adjoin the railroad at any place; that the horse got out of Cox's pasture into the inclosure of one Barnett, and from Barnett's field into the inclosed field of one Gordon, and from Gordon's land to the track of defendant; that plaintiff's land is a half mile from the railroad of defendant; that the fence on Gordon's land along the side of the track of the line of defendant's road was not good about 200 yards from where the horse was killed, and there was a place near by where the railroad fence was not more than two and a half feet high; that the horse could have got on the track near the place where he was killed; that he was found on the bridge outside of the track hanging through the timbers of the bridge.

Defendant asked the following instructions, which were refused by the court, and to the action of the court in refusing said instructions, defendant excepted at the time:

2. That the defendant is not required to fence its line of railroad where it passes through, along or adjoining inclosed and cultivated fields or uninclosed lands, except for the benefit of adjoining proprietors; and if the plaintiff was not at the time of the happening of the injuries complained of, an adjoining proprietor, either as owner or one having the right of possession, then they will find for the defendant.

4. If the plaintiff's horse is shown by the...