Marrett v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1884
• Parties: MARRETT v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

84 Mo. 413

MARRETT

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Clinton Circuit Court.--HON. G. W. DUNN, Judge.

AFFIRMED.

Geo. W. Easley for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action, in that it does not allege any facts which show that the animal was killed because of the want of a fence. Luckie v. Ry. Co., 67 Mo. 245; Cunningham v. Ry. Co., 70 Mo. 202; Rowland v. Ry. Co., 73 Mo. 619; Sloan v. Ry. Co., 74 Mo. 47; Morrow v. Ry. Co., 74 Mo. 82. (2) The petition is further defective in that it does not show that the point where the animal got upon the track, or was killed, was of the character of land required to be fenced by the double damage statute. Bates v. Ry. Co., 74 Mo. 60; Davis v. Ry. Co., 65 Mo. 441.

D. H. McIntyre and F. M. Brown for respondent.

(1) The petition sufficiently alleges that the calf was killed because of the want of a sufficient fence. It states that the animal strayed upon the track “where said road was not inclosed by a good and lawful fence,” and “where there was a break in the fence of said road, and carelessly and negligently allowed to remain in bad condition by defendant, and was killed by defendant's locomotive and cars, being run and operated by defendant's agents.” This will warrant the inference that the animal got upon the track by reason of the failure to fence, and an express allegation to that effect was not necessary. Edwards v. Railroad, 74 Mo. 117; Kronski v. Railroad, 77 Mo. 362; Farrell v. Union Trust Co., 77 Mo. 475; Perriquez v. Railroad, 78 Mo. 91; Campbell v. Railroad, 78 Mo. 639. (2) The petition avers that the calf strayed upon the track and was killed at a certain point, “not in the corporate limits of a city or town and not at a public crossing,” and “where there was a break in the fence of said road.” This was a sufficient allegation that the animal got upon the track and was killed at a point where the law required the road to be fenced. Perriquez v. Ry., 78 Mo. 91; Wade v. R. R., 78 Mo. 362; Campbell v. R. R., 78 Mo. 639.

EWING, C.

This was an action before a justice of the peace, founded on the following complaint: “Plaintiff says that defendants are a corporation, made so by the laws of Missouri; that they own a railroad which runs through Lathrop township, in Clinton county, Missouri; that at a certain point, not in the corporate limits of a city or town, and not at a public crossing, where said road was not enclosed by a good and lawful fence, plaintiff's calf, about one year old, on or about the fourth day of June, 1880, strayed upon defendant's road where there was a break in the fence of said road, and carelessly and negligently allowed to remain in bad condition by defendant, and was killed by defendant's locomotive and cars, being run...