Kinney v. Hannibal & St. J. R. Co.

• Decision Date: 07 November 1887
• Citation: 27 Mo.App. 610
• Parties: EDMUND KINNEY, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 610

EDMUND KINNEY, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 7, 1887

APPEAL from Clinton Circuit Court, HON. JAMES M. SANDUSKY, Judge.

Affirmed.

The case and facts are stated in the opinion of the court.

THOS E. TURNEY and STRONG & MOSMAN, for the appellant.

I. The defendant's instruction should have been given, because (1) the evidence does not show that the animal was injured or killed in Shoal township, or in an adjoining township. Mitchell v. Railroad, 82 Mo. 106; Vaughn v Railroad, 15 Mo.App. 597; Backenstoe v Railroad, 86 Mo. 492; King v. Railroad, 90 Mo 520. The point at which the injury occurs gives jurisdiction. Rev. Stat., sect. 2839; cases cited, supra, and especially, Backenstoe v. Railroad, 86 Mo. 492; Ellis v. Railroad, 83 Mo. 372. (2) The evidence does not show that the injury was not in the crossing of a public highway. Calvert v. Railroad, 34 Mo. 242; Messick v. Railroad, 57 Mo. 134; Casey v. Railroad, 60 Mo. 209. The statute is penal and must be construed strictly against plaintiff. Parrish v. Railroad, 63 Mo. 286-7.

II. The statement does not contain facts sufficient to constitute a cause of action, in this: It is not alleged in the statement that the injury was not in the crossing of a public highway. Dyer v. Railroad, 34 Mo. 127; Quick v. Railroad, 31 Mo. 399; Brown v. Railroad, 33 Mo. 309; West v. Railroad, 34 Mo. 177; Davis v. Railroad, 65 Mo. 441. These decisions were rendered under the fifth section of the damage act, in which less particularity of statement is required than in suits under section 809, Revised Statutes, for double damages. Parrish v. Railroad, 60 Mo. 284.

III. The motions for new trial and in arrest should have been sustained. Authorities, supra.

WILLIAM A. WOOD, with JOHN J. MCANAW, for the respondent.

I. Plaintiff's statement in the justice's court was sufficient. Under section 809, Revised Statutes, a statement that the animal got upon defendant's track where defendant was by law required to fence the same, but had not done so, is sufficient, and it is not required in a statement under said section to negative that the injury was done in the crossing of a public highway, as contended by appellant. Jackson v. Railroad, 80 Mo. 148; Brown v. Railroad, 75 Mo. 426; Edwards v. Railroad, 74 Mo. 117; Myers v. Trust Co., 82 Mo. 237; Briscoe v. Railroad, 25 Mo.App. 468.

II. Direct proof that the injury was committed in Shoal township was not required if the evidence was such as to enable the jury to arrive at that result. That the statute under which this action was brought is penal, does not change this rule. This rule has been applied to proof of venue in numerous cases in which the defendants were charged with the commission of felonies, and would be entitled to have the rule as strictly applied, at least, as the defendant corporation in the case at bar. State v. Chamberlain, 89 Mo. 129; State v. McGinnis, 76 Mo. 326; State v. West, 69 Mo. 404; Lepp v. Railroad, 87 Mo. 139.

III. Under authority of Asher v. Railroad (89 Mo. 116), the evidence in the case at bar was sufficient to go to the jury, to support the verdict, and warranted the instruction given for the plaintiff. Briscoe v. Railroad, 25 Mo.App. 468; Gee v. Railroad, 80 Mo. 283.

IV. Counsel for appellant urge as ground for reversal that, " It is not alleged in the statement of plaintiff that the injury was not received in the crossing of a public highway." As a legal proposition this objection is wholly without foundation, and unsupported by authority. Appellant labors under a misapprehension of the law or misapplies it; every authority cited by him to support his position on this point is in cases where the action was brought under section 2124, Revised Statutes, which takes the place of the fifth section of the old damage act, and which contains the following language: " But this section shall not apply to any accident occurring on any portion of such road that may be enclosed by a lawful fence, or in the crossing of any public highway." Section 809, Revised Statutes, similar to section 43, of the damage act, and under which plaintiff's action was brought, contains no such provision as to highway crossings, and the statement filed with the justice fully met the requirements of said section. The statement, following the language of the statute, " at a point where required by law to fence," negatives the occurring of the injury in the crossing of a public highway. Section 2124, Revised Statutes, gives a remedy against railroad corporations where they might lawfully fence their tracks and do not, while section 809, Revised Statutes, gives penal redress for not fencing their tracks where they are required by law to fence them. Rad cliffe v. Railroad, 90 Mo. 127. The circuit court committed no error in giving the instruction asked by plaintiff, and refusing that asked by defendant, the motions for a new trial and in arrest of judgment were properly overruled, and the judgment of the court below should be affirmed.

JOHN J. MCANAW, also for the respondent.

I. The statement shows the injury occurred outside of the highway. Dorman v. Railroad, 17 Mo.App. 337; Perriquez v. Railroad, 78 Mo. 93; Campbell v. Railroad, 78 Mo. 639; Wade v. Railroad, 78 Mo. 362; Rozzelle v. Railroad, 79 Mo. 350.

II. It is contended by appellant that the statement fails to show jurisdiction in the justice's court, in that it fails to state that the injury occurred in Shoal township. Its position cannot be maintained. The statement shows that respondent operated its road through Shoal township; and in said township the animal came upon the track by reason of the failure to fence, " and while said animal was on said railroad, as aforesaid, defendant, by its agents, engines, and cars, did run upon, strike, and wound, and kill said animal," etc. The allegation being qualified by the terms, " as aforesaid," incorporates the previous allegation, in which it is stated in terms that the animal came upon the track in Shoal township, and while thereon, as aforesaid, was struck, etc.

III. Appellant also contends that the statement does not state a cause of action, because it does not affirmatively allege that the animal was struck outside the crossing of a public highway. The statement does allege that the injury was done at a point on said railroad, where the same passes through, and along, and adjoining, enclosed and cultivated fields, and while thereon, as aforesaid, etc., was struck, etc. The statement that the railroad runs through, along, and adjoins an enclosed and cultivated field, excludes the idea of a public highway. Dorman v. Railroad, 17 Mo.App. 337, and cas. cit.

IV. Appellant puts forth the claim that there is not sufficient evidence to go to the jury. (1) It is submitted that the evidence does show that the injury did occur in Shoal township. The witness, Kinney (plaintiff), lays the place " in Shoal township, two and one-half miles southwest of Cameron. Mrs. Smith's field was on one side and the Rock Island railroad on the other. Mrs. Smith's field was enclosed and cultivated." Witness, Martin, testified that " he saw the calf Thursday morning. Found it on the section, about five telegraph poles west of the crossing, at Mrs. Smith's place, and could see where train had knocked it off." The plaintiff's evidence makes the major premise. Where the railroad adjoins Mrs. Smith's field is in Shoal township. Martin's testimony makes a minor " The animal was struck and injured where the railroad adjoins Mrs. Smith's place." Therefore, the animal was struck and injured in Shoal township. Respondent deems the evidence conclusive even if this court were passing upon the weight of evidence. ...