Kirn v. Cape Girardeau & C. Ry. Co.

• Decision Date: 14 June 1910
• Citation: 129 S.W. 475,149 Mo. App. 708
• Court: Missouri Court of Appeals
• Parties: KIRN v. CAPE GIRARDEAU & C. RY. CO.

129 S.W. 475

149 Mo. App. 708

KIRN v. CAPE GIRARDEAU & C. RY. CO.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

Rehearing Denied June 28, 1910.

1. RAILROADS (§ 439) — KILLING STOCK — ACTION — PETITION.

A petition against a railroad for killing plaintiff's cow, alleging that defendant while running its locomotive and train through adjoining unclosed lands at a point in G. county where it was required by law to erect and maintain a lawful fence, and not a public crossing, nor within an incorporated town or village, on or about the 24th of December, 1908, by its engine and cars did strike and injure plaintiff's cow so that she died from such injuries, and that the cow strayed and went on the railroad grounds by reason of defendant's neglect to erect and maintain good and lawful fences on the side of the railroad where the cow entered on the same as aforesaid, was not objectionable for failure to show facts showing defendant's legal obligation to fence the track, or that the injury was occasioned by failure to do so.

2. RAILROADS (§ 411) — KILLING STOCK — FAILURE TO FENCE TRACK.

Where plaintiff's cow entered on defendant's railroad track at a place where defendant was required to fence and where no fence was maintained, and the cow was killed in the operation of defendant's railroad, the railroad company was liable for the value of the cow.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Joseph Kirn against the Cape Girardeau & Chester Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Giboney Houck and Davis & Hardesty, for appellant. Albert M. Spradling, for respondent.

REYNOLDS, P. J.

The principal, in fact the only, complaint in this case on the part of the appellant, is that the petition fails to distinctly state that the cow, damages for the death of which is the cause of action, had entered upon the track of the defendant's road at a place where a lawful fence was required to be kept, but at which place there was no fence. The action was instituted in the circuit court and the petition avers that the defendant, while running its locomotive and train of cars over its said railroad through, along, and adjoining uninclosed lands, at a point in Cape Girardeau county, Mo., where by law it was required to erect and maintain a lawful fence, and not at a public crossing, nor within an incorporated city, town, or village, did on or about the 24th of September, 1908, by its engine and cars, strike and injure the cow so that from the injuries she died. It is further averred "that said cow strayed and went in and upon said railroad grounds by reason of the failure and neglect of the defendant to erect and maintain good and lawful fences on the sides of its railroad where said cow entered upon the same as aforesaid." The answer was a general denial. Trial before the court and jury having been commenced and plain...