Moore v. Wabash, St. Louis & Pacific Ry. Co.

• Citation: 81 Mo. 499
• Parties: MOORE v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 30 April 1884
• Court: Missouri Supreme Court

81 Mo. 499

MOORE

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Daviess Circuit Court.--HON. J. C. HOWELL, Judge.

REVERSED.

Wells H. Blodgett and Geo. S. Grover for appellant.

It does not appear from this record that the justice before whom the suit was brought, had any jurisdiction of the cause. If he had not jurisdiction none was conferred upon the circuit court by the appeal and trial de novo there. State v. Metzger, 26 Mo. 65; Bersch v. Schneider, 27 Mo. 101; Webb v. Tweedie, 30 Mo. 488; Hansberger v. Railroad Co., 43 Mo. 196; Iba v. Railroad Co., 45 Mo. 470; Dillard v. Railroad Co., 58 Mo. 69; Haggard v. Railroad Co., 63 Mo. 302. The complaint is fatally defective in not alleging that the cow got upon defendant's track at a point where there was no fence, as required by law, and was there killed in consequence of such failure to fence. Johnson v. Railroad Co., 76 Mo. 553; Nance v. Railroad Co., 79 Mo. 196. The admission of parol testimony to show that the townships of Benton and Grand River in Daviess county, Missouri, adjoined each other, was a fatal error. There was no such allegation in the complaint. Buffington v. Railroad Co., 64 Mo. 246; Waldheir v. Railroad Co., 71 Mo. 514; Edens v. Railroad Co., 72 Mo. 212; Price v. Railway Co., 72 Mo. 414; Wayland v. Railway Co., 75 Mo. 556. The instruction given for plaintiff was erroneous. In the absence of an averment stating where the animal came upon the track, it was error to give this or any other instruction raising this issue, because it was nowhere averred in the statement. Cecil v. Railroad Co., 47 Mo. 246; Luckie v. Railroad Co., 67 Mo. 245; Cunningham v. Railroad Co., 70 Mo. 202; Johnson v. Railway Co., 76 Mo. 553; Nance v. Railroad Co., 79 Mo. 196.

Rush & Alexander for respondent.

It is not necessary that the statement should show that the suit is brought in the township where the injury happened. It is sufficient if it appear somewhere in the proceedings. Cummings v. Railway Co., 70 Mo. 571; Barnett v. Railroad Co., 68 Mo. 57; Iba v. Railroad Co., 45 Mo. 469; Hansberger v. Railroad Co., 43 Mo. 196. It was unnecessary for the statement to show that suit was brought in an adjoining township to that in which the injury happened, but it may appear aliunde, and proof was offered to show that Benton and Grand River townships adjoined. But aside from such proof the court should take judicial notice of the relative position of the townships of Benton and Grand River. 1 Greenleaf on Ev., (13 Ed.) § 6; Martin v. Martin, 57 Me. 366; Woods v. Henry, 55 Mo. 560. Plaintiff's statement is sufficient to constitute a cause of action under section 809, article 2, chapter 21, Revised Statutes 1879. Edwards v. Railroad Co., 74 Mo. 117; Bowen v. Railroad Co., 75 Mo. 426; Belcher v. Railway Co., 75 Mo. 514. And plaintiff's instruction, given by the court, correctly declared the law. Lantz v. Railway Co., 54 Mo. 228.

EWING, C.

Suit was commenced by the respondent upon the following statement:

“William H. More, plaintiff, against the Wabash, St. Louis & Pacific Railway Company, defendant.

Before Henry Ward, justice of the peace within and for Daviess county, Missouri. Plaintiff says that the defendant, at the time of the alleged injury hereinafter mentioned, was and still is a corporation, duly organized and doing business under and by virtue of the laws of Missouri. Plaintiff alleges that on the 14th day of December, A. D., 1880, the defendant did, by its agents, engines, cars and locomotives strike, wound, bruise and kill a cow, the property of the plaintiff of the value of $35, at a point on its road in Grand River township, in Daviess county, Missouri, where there was no railroad, farm or public crossing and where the defendant's road was wholly unfenced, and passed through and along inclosed and cultivated fields, and where the defendant was, by virtue of the statute in such cases made and proved, to-wit: By section 809 of article (2) two of chapter (21) twenty-one, of the Revised Statutes of Missouri, entitled “of private corporations,” bound to make, construct and maintain lawful fences and cattle-guards on or along the sides of its road. And plaintiff says that by reason of the failure of defendant to so construct and maintain said fences and cattle-guards, his cow strayed upon its road and was killed, and that by reason thereof he has been damaged in the sum of $35.

Wherefore plaintiff by virtue of said statute has the right to recover of defendant, and, therefore, prays judgment for double the amount of said damages, to-wit, seventy dollars ($70).”

There was judgment before the justice for the plaintiff and an appeal to the circuit court, where there was again judgment for plaintiff, and the appellant brings the case here for review

I. It is insisted that the statement is not sufficient upon which to recover, in “not alleging that the cow got upon defendant's track at a point where there was no fence, as required by law, and was then killed, in consequence of such failure to fence. It is alleged that the animal was killed in consequence of such failure to fence, but where it got upon the track is not stated.” We think this objection is not well taken. The statement, after alleging that the cow was killed at a point where there was no fence, and where by law the defendant was bound to fence, proceeds: “That by reason of the failure of defendant to so construct and maintain said fences * * his cow strayed upon its road and was killed,” etc. This, we think, comes up to the necessary requirements. Williams v. Mo. Pac. R'y Co., 74 Mo. 453; Terry v. Mo. Pac. R'y Co., 77 Mo. 254; Jackson v. Railroad Co., 80 Mo. 147; ...