Kirn v. Cape Girardeau & Chester Railroad Company
| Decision Date | 14 June 1910 |
| Citation | 129 S.W. 475,149 Mo.App. 708 |
| Parties | JOSEPH KIRN, Respondent, v. CAPE GIRARDEAU & CHESTER RAILROAD COMPANY, Appellants |
| Court | Missouri Court of Appeals |
June 8 1910, Argued and Submitted
Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.
Judgment affirmed.
Giboney Houck and Davis & Hardesty for appellant.
(1) The petition is fatally defective. (a) It fails to charge defendant with a legal duty to maintain a fence at the point where the cow entered the right of way. Cecil v Railroad, 47 Mo. 246; Nance v. Railroad, 79 Mo. 196; Hudgens v. Railroad, 79 Mo. 418; Clark v. Railroad, 79 Mo. 419; Asher v. Railroad, 79 Mo. 432; Manz v. Railroad, 87 Mo. 278; Ward v. Railroad, 91 Mo. 168; Wood v. Railroad, 39 Mo.App. 63; Moreland v. Railroad, 17 Mo.App. 77; McIntosh v. Railroad, 26 Mo.App. 377; Summers v. Railroad, 29 Mo.App. 41; Jones v. Railroad, 52 Mo.App. 381; Morrow v. Railroad, 82 Mo. 169; Schulte v. Railroad, 76 Mo. 324; Davis v. Railroad, 65 Mo. 441; Rowland v. Railroad, 73 Mo. 619; Cunningham v. Railroad, 70 Mo. 202. (b) It fails to allege that the injury was occasioned by a failure to maintain a fence anywhere, much less at a point where a fence was required by law. Luckie v. Railroad, 67 Mo. 245; Cunningham v. Railroad, 70 Mo. 202; Rowland v. Railroad, 73 Mo. 619; Morrow v. Railroad, 74 Mo. 82; Hudgens v. Railroad, 79 Mo. 418; Dryden v. Smith, 79 Mo. 525; Hudgens v. Railroad, 79 Mo. 218; Clark v. Railroad, 79 Mo. 419. (c) The statute being penal, great strictness is required both as to the allegations and proof. The defects above pointed out are fatal, and are not cured by the verdict. Even the decisions upholding the sufficiency of these statements filed before justices, will not support the sufficiency of this petition. Razor v. Railroad, 73 Mo. 471; Edwards v. Railroad, 74 Mo. 117; Williams v. Railroad, 74 Mo. 173; Bowen v. Railroad, 75 Mo. 426; Belcher v. Railroad, 75 Mo. 514; Kronski v. Railroad, 74 Mo. 362; Campbell v. Railroad, 78 Mo. 639; Field v. Railroad, 80 Mo. 203; Johnson v. Railroad, 80 Mo. 620; Moore v. Railroad, 81 Mo. 499. A fortiori, must this petition, filed originally in the circuit court, be held fatally defective. Razor v. Railroad, supra. See also cases cited under Point I. (d) All statements of this character whether filed before justices or in the circuit court, have come to be more and more strictly construed, and no case can be found, under the law as it now exists, where a petition lacking the allegations that this lacks, has been held sufficient. Manz v. Railroad, 87 Mo. 278; Ward v. Railroad, 91 Mo. 168; Wood v. Railroad, 39 Mo.App. 63; Jones v. Railroad, 52 Mo.App. 381. (e) Under all the authorities above cited, it is manifest that the defects here complained of were not cured by the verdict: see also Staley H. F. Co. v. Wallace, 21 Mo.App. 128. (2) Under the foregoing "authorities," it is also manifest that the court erred in the following respects, to-wit: 1. In admitting any evidence at all, no cause of action being stated. 2. In admitting evidence as to the injuries sustained, there being no allegation that the injuries were caused by any neglect of duty required by law. 3. In admitting evidence as to any lack of fences, there being no allegation as to a legal requirement of a fence at the point where the cow entered upon the right of way. (3) Whatever evidence was adduced as to the character of the place where the cow was injured shows it to be where the railroad runs through the land of a stranger, Drum; also shows it to be where a crossing was maintained. These facts bar a recovery, even if it should be held that said place of injury was the point of entrance. Summers v. Railroad, 29 Mo.App. 47; Harrington v. Railroad, 71 Mo. 384; Rhinehardt v. Railroad, 80 S.W. 911; Hendrix v. Railroad, 50 Mo.App. 520; Carpenter v. Railroad, 119 Mo.App. 208; Acord v. Railroad, 113 Mo.App. 84.
Albert M. Spradling for respondent.
(1) The petition alleges directly that the injury was caused by the failure of the defendant to erect and maintain good and lawful fences along the sides of its railroad as required by statute, and is sufficient. Seidel v. Railroad, 109 Mo.App. 160; Fraysher v. Railroad, 66 Mo.App. 573; Marion v. Railroad, 127 Mo.App. 129; Smith v. Railroad, 127 Mo.App. 160; Rowan v. Railroad, 82 Mo.App. 24; McGuire v. Railroad, 43 Mo.App. 354. (2) The petition is sufficient if it alleges by inference that the injury was caused by the failure of the defendant to erect and maintain good and lawful fences along the sides of its railroad, as required by statute. McGuire v. Railroad, 43 Mo.App. 354; Perriquez v. Railroad, 78 Mo. 91; Busby v. Railroad, 81 Mo. 43; Nicholson v. Railroad, 82 Mo. 73. (3) The petition avers that the point where the cow came upon the railroad track was not at a public crossing, nor within the corporate limits of a city, town or village, but it is not necessary that the petition alleges these facts. It is sufficient if they appear by necessary implication. Ringo v. Railroad, 91 Mo. 667; Perriquez v. Railroad, 78 Mo. 91; Jantzen v. Railroad, 83 Mo. 171; Lainiger v. Railroad, 41 Mo.App. 165; Shotwell v. Railroad, 37 Mo.App. 654; Lindsay v. Railroad, 53 Mo.App. 11. (4) The petition states a cause of action, but conceding that it is defective, its defects are cured after verdict by section 672 of the Revised Statutes of 1899, unless it would have been bad on general demurrer. Howell v. Reynolds Co., 51 Mo. 154; Hall v. Lane, 123 Mo. 633; Reed v. Crane, 89 Mo.App. 670; Phillips v. Stewart, 87 Mo.App. 486; Murphy v. Insurance Co., 70 Mo.App. 78. (5) The fair way to challenge the sufficiency of a petition is by demurrer in the beginning, and if it is adjudged insufficient, and is susceptible of amendment, the fault may be cured, and not wait until the case is called to be tried on its merits and the jury sworn and then object to the sufficiency of the petition. Haseltine v. Smith, 154 Mo. 404; Jarrett v. Mohan, 126 S.W. 212. (6) The evidence is sufficient as to where the cow entered upon the defendant's railroad track. Walters v. Railroad, 78 Mo. 617; Gee v. Railroad, 80 Mo. 283; McBride v. Railroad, 20 Mo.App. 216; Jones v. Railroad, 44 Mo.App. 15; Fraysher v. Railroad, 66 Mo.App. 573. (7) Where stock is injured at a place where the railroad company has failed to comply with the statute in maintaining lawful fences on the sides of its road, the place of killing will, in the absence of evidence to the contrary, be presumed to be the place of entry. Ellis v. Railroad, 89 Mo.App. 241; Fraysher v. Railroad, 66 Mo.App. 573; Crenshaw v. Railroad, 54 Mo.App. 233; Kinion v. Railroad, 39 Mo.App. 382; Pearsons v. Railroad, 33 Mo.App. 543.
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, Missouri, 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 plaintiff sworn as a witness on his own behalf and asked where he lived, counsel for the defendant objected to the introduction of any testimony in this case, for the reason that the petition fails to state a cause of action: First, that it fails to allege or to state any facts which show that this defendant was under any legal duty or obligation to have any fence at the point where the cow entered upon the track; second, that it fails to allege that this injury was occasioned or caused by any failure to fence at all. This objection was overruled and exception duly saved and testimony was introduced tending to show that the animal was struck by the engine of defendant's train about half way in a big cut and that she subsequently died or had to be killed in consequence of the injuries then received. This cut where the cow was struck was not fenced, and objection was made to the testimony which tended to prove this, on the ground that it was immaterial whether the railroad was fenced at the point where she was injured. This was overruled and defendant excepted. Asked how the cow got on the track, the plaintiff, as a witness, testified that he supposed she went on the track to pick, or came down on the track; that she could not have got on the track if there had been a fence but that there was no fence there at all. He stated that the cow did not get on the track at the point where she was struck; that she could not have got on the track where ...
To continue reading
Request your trial