McReynolds v. Quincy, O. & K. C. R. Co.

• Decision Date: 16 January 1906
• Citation: 91 S.W. 446,115 Mo. App. 676
• Court: Missouri Court of Appeals
• Parties: McREYNOLDS v. QUINCY, O. & K. C. R. CO.

91 S.W. 446

115 Mo. App. 676

McREYNOLDS v. QUINCY, O. & K. C. R. CO.

St. Louis Court of Appeals. Missouri.

January 16, 1906.

1. JUSTICES OF THE PEACE — PLEADINGS — REDUNDANCY.

Where a suit is begun before a justice of the peace, where formal pleadings are not required, redundancy and surplusage may be disregarded, and the complaint held sufficient if there is enough stated to bar a second suit on the same state of facts.

2. RAILROADS — INJURIES TO ANIMALS — DEFECTIVE FENCES — PLEADING.

Where, in an action before a justice for injuries to plaintiff's mare by the fallen wires of defendant's right of way fence, the evidence was uncontradicted that defendant, with full knowledge of the condition of the fence and that the fallen wires were a constant menace to plaintiff's stock in his pasture, willfully left the fence in such a condition after repeated requests by plaintiff to repair the same, in disregard of its statutory duty, plaintiff's right to recover was based on defendant's willful refusal to perform such statutory duty, and hence an allegation of negligence in the complaint would be treated as surplusage.

3. TRIAL — INSTRUCTIONS — PROVINCE OF JURY.

Where, in an action for injuries to plaintiff's mare, the evidence was all oral, an instruction that the jury should find for plaintiff and assess his damages as specified was erroneous as invading the province of the jury.

Appeal from Circuit Court, Knox County; E. R. McKee, Judge.

Action by Robert McReynolds against the Quincy, Omaha & Kansas City Railroad Company. From a judgment in favor of plaintiff on appeal from a justice's judgment, defendant appeals. Reversed.

Jas. G. Trimble, for appellant.

BLAND, P. J.

The evidence shows that defendant at some time erected a fence, consisting of posts and seven wires, on its right of way, where the same adjoins the plaintiff's pasture field; that the posts had become old and rotten, and most of them had fallen over; that for a quarter of a mile most of the posts were flat upon the ground and the wires detached and strung out on the ground, so that plaintiff's stock, running on his pasture, could and did step over the wires on to defendant's right of way; that the fence had been in this condition for a long time and plaintiff had repeatedly made complaint to defendant's section men and asked them to fix it up; that all that was done toward repairing the fence was to prop up the old rotten posts. These props soon gave way and the condition of the fence grew from bad to worse, and on December 6, 1903 plaintiff's mare, running on his pasture, got one of her fore feet entangled in the fallen wires and was so badly injured as to become comparatively worthless. The suit was commenced before a justice of the peace to recover the value...