Marion v. St. Louis & S. F. R. Co.

• Decision Date: 23 September 1907
• Citation: 104 S.W. 1125,127 Mo. App. 129
• Parties: MARION v. ST. LOUIS & S. F. R. CO. et al.
• Court: Missouri Court of Appeals

104 S.W. 1125

127 Mo. A. 129

MARION v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

September 23, 1907.

1. RAILROADS — INJURIES TO ANIMALS — FAILURE TO FENCE — ACTIONS — PLEADING.

In an action under Rev. St. 1899, § 1105 [Ann. St. 1906, p. 945], making a railroad liable for damages to animals resulting from failure to lawfully fence its right of way, a petition which substantially follows the statute by reciting every duty imposed on the railroad thereby, and the elements of neglect on its part, is sufficient, though it does not particularize what constitutes a lawful fence within the meaning of the statute.

2. TRIAL — INSTRUCTIONS — EFFECT OF FAILURE TO ASK — DUTY OF COURT.

Where plaintiff fails to ask instructions, it is not error for the court to decline to require him to do so, and to decline to instruct from plaintiff's standpoint on its own motion, even though requested ore tenus to do so by defendant.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Luke Marion against the St. Louis & San Francisco Railroad Company and others. From a judgment for plaintiff, defendant appeals. Affirmed.

See 101 S. W. 688.

L. F. Parker and Moses Whybark, for appellant. J. V. Conran, for respondent.

NORTONI, J.

Plaintiff recovered in the circuit court, and defendant appeals.

The petition is in three counts, under section 1105, Rev. St. 1899 [Ann. St. 1906, p. 945]. The first two counts allege the killing of certain animals owned by the plaintiff which had strayed upon the defendant's track because of its failure to construct and maintain sufficient fences and cattle guards, as required by the statute. The killing of the animals occurred on different days, and therefore the separate counts contained in the petition. So much of the first count as is material is as follows: "That said sow at said date strayed and went in and upon the right of way occupied by the road of the defendant, at a point in La Font township, county and state as aforesaid, where the defendant was by law required to erect and maintain lawful fences along the sides of its said road, and to construct sufficient cattle guards, and not at a public road crossing, nor within the switch limits of any station, nor within the limits of an incorporated town or village; and where the said road of the defendant passes through, along, or adjoining inclosed and cultivated lands and fields, or uninclosed lands, at and in the township, county and state first mentioned as aforesaid. That said sow strayed and went in and upon the track and grounds occupied by the railroad of the defendant, by reason of the failure and neglect of the defendant to erect and maintain lawful fences along the sides of its said railroad, and its failure to construct sufficient cattle guards where the said sow entered upon the same, as aforesaid." Thereafter follow allegations of collision by the locomotive and cars of defendant with the animal, and a prayer for damages to cover the loss sustained, etc. The second count is substantially the same in this respect.

The first point made...