King v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 31 October 1883
• Citation: 79 Mo. 328
• Parties: KING v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 328

KING

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

REVERSED.

M. A. Low for appellant.

A. H. Vories and Doniphan & Reed for respondent.

HOUGH, C. J.

1. JUSTICE'S COURTS: amendment on appeal.

This suit was instituted before a justice of the peace to recover damages for the killing of a mare and two mules by a locomotive and train of cars belonging to and operated by the defendant. The material portion of the statement filed with the justice, is as follows: “That said mare and two mules were run upon and killed by said defendant's locomotive and train of cars, at a point in its road on or near the land of Daniel B. Griffith, in said township, where said defendant had not inclosed, and did not erect any fence, nor maintain cattle-guards, as required by section 43, article 2, chapter 37, page 310, Wagner's Missouri Statutes.” On appeal to the circuit court, and at the January term, 1880, of said court, the plaintiff filed an amended statement, setting forth that the animals in question were killed at a point on defendant's road, where the same passes along and adjoins plaintiff's inclosed and cultivated field, and not at a crossing of said road, public or private, and that said animals got upon the track where the defendant had failed and neglected to erect and maintain good and sufficient fences, and were killed in consequence of such failure.

The defendant objected to the amendment, and the question is, whether it was permissible. It has repeatedly been held by this court, that statements like that filed with the justice in this case, could not be amended in the circuit court; but those rulings were made in cases where the cause was tried in the circuit court, before the Revised Statutes of 1879 took effect. By section 3060 of the Revised Statutes, it is provided that on appeal from a judgment of a justice of the peace, the statement filed before the justice may be amended in the appellate court, so as to supply any deficiency or omission therein, when, by such amendment, substantial justice will be promoted; provided no cause of action not intended to be included in the original statement shall be added by such amendment. This section, which is a new one, authorizes the amendment made in this case.

2. LAWFUL FENCES.

The judgment must be reversed, however, for error committed by the court in giving the following...