Marion v. St. Louis & San Francisco Railroad Company

• Decision Date: 23 September 1907
• Citation: 104 S.W. 1125,127 Mo.App. 129
• Parties: MARION, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY et al., Appellants
• Court: Missouri Court of Appeals

104 S.W. 1125

127 Mo.App. 129

MARION, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY et al., Appellants

Court of Appeals of Missouri, St. Louis

September 23, 1907

Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

L. F Parker and Moses Whybark for appellants.

(1) This suit was brought in the circuit court, and not before a justice of the peace, under the double damage statute, which is a penal statute. R. S. 1899, sec. 1105; Barnett v Railroad, 68 Mo. 56. The statute defines what a lawful fence shall be. R. S. 1899, sec. 3295. In a case of this nature it has been held that the court should instruct the jury, and not leave them to grope their way unaided through the testimony in order to determine what they should take into consideration in making up their verdict. (2) But in the case at bar the plaintiff refused to offer any instructions on a penal statute, which, in its nature, is criminal, and the court sustained him in that conduct; and then the court refused to instruct the jury, although requested to do so by the defendant. This, we submit, is not law. Bindbeutal v Transit Co., 43 Mo.App. 463; Mitchell v. Bradstreet Co., 116 Mo. 226; Coleman v. Drane, 116 Mo. 387; Nolan v. Johns, 126 Mo. 159; Browning v. Railroad, 124 Mo. 55; Boettger v. Iron Co., 124 Mo. 87; Tetherow v. Railroad, 98 Mo. 74.

J. V. Conran for respondent.

(1) The petition in this case has been before the courts of this State, in present form, a great many times and this particular court has seen it recently. Phillips v. Railroad, 107 Mo.App. 203; Wilkerson v. Railroad, 106 Mo.App. 336; Brannock v. Railroad, 106 Mo.App. 379. (2) No objection was made to the petition in the court below, by demurrer, or by motion in arrest; the objection appears only in motion for a new trial. Under these circumstances if the petition states a cause of action at all it must be held good. Paddock v. Somes, 102 Mo. 226; Thompson v. School District, 71 Mo. 495; Grove v. Kansas City, 75 Mo. 672; R. S. 1899, sec. 672.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

--Plaintiff recovered in the circuit court and defendant appeals. The petition is in three counts, under section 1105, Revised Statutes 1899. 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 LaFont 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 un-inclosed 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 on the appeal is that inasmuch as the statute is in its nature penal, the petition should set out and define what is a lawful fence, to comport with the rule requiring strict procedure thereunder. It will be observed that the petition substantially follows and brings the case strictly within the provisions of the section of the statute referred to, by reciting every duty imposed on defendant thereby and the several elements of neglect on its part thereabout, and it is sufficient under the numerous decisions of both the appellate and the Supreme Courts. [Summers v. Railway, 29 Mo.App. 41; Duncan v Railway, 91 Mo. 67, 3 S.W. 835; Chubbuck v. Railway, 77 Mo. 591.] And this is true under a long line of cases that could be cited in which such petitions have been approved,...