Moreland v. Missouri Pac. Ry. Co.
| Decision Date | 23 March 1885 |
| Parties | BROOKS MORELAND, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.
Reversed.
The facts sufficiently appear in the opinion of the court.
ROBERT ALLEN and GEORGE N. BOWLES for the appellant.
I. The court erred in overruling defendant's objection to the introduction of any evidence under the statement upon which plaintiff went to trial. It cannot be inferred from any averment in the statement, that the defendant was bound to fence its road, at the point where the animals entered upon its track.-- Perriquez v. R. R. Co., 78 Mo. 91; Morrow v. Pacific Railway Co., April term, 1883 (not yet reported).
II. The motion in arrest of judgment should have been sustained. The statement does not state facts sufficient to constitute a cause of action, and upon the record the judgment is erroneous.-- Bates v. Railway Co., 74 Mo. 60; Cunningham v. Railway Co., 70 Mo. 202; Morrow v Railway Co. (not yet reported).
FOSTER P. WRIGHT, for the respondent.
I. The statement in this case comes fully up to the statement in the case of Moore v. Wabash R. R. Co., decided at the last April term, where it was held that " a statement alleging the defendant killed plaintiff's cow at a point on its road where it was wholly unfenced, and by reason of the failure of defendant to construct and maintain said fences, his cow strayed upon the road and was killed, is sufficient."
II. The statement in this case is entirely different from Morrow v. Pacific R. R. Co., as in this case it is specifically alleged that the killing occurred by reason of defendant's failure to fence, and the averment was clearly sustained by the evidence. At any rate it was good after the verdict, and more especially as every essential fact was proved at the trial.
This is an action designed to be based on sect. 809, Revised Statutes, commonly known as the double-liability provision for killing a cow and hog on defendant's railroad track. The action was instituted in a justice's court. The statement filed in the case, omitting its formal parts, as to the incorporation of defendant, etc., is substantially as follows:
The plaintiff was the owner of one cow and one hog. The cow was of the value of fifty dollars, and the hog was of the value of ten dollars. The said hog strayed upon the track of the defendant's road, in Prairie township, in Jackson county in the state of Missouri, on the 10th day of December, 1880, without the fault of plaintiff, and was killed by defendant's engines and trains of cars in said Prairie township. That said hog was not killed on any public or private crossing, but at a point on the line of said road where the same was not fenced with a good and sufficient fence. And the said cow strayed upon the track of defendant's road, without the fault of plaintiff, at a point in said Prairie township where said road was not fenced with a good and sufficient fence, and was killed by defendant's engines and trains of cars, on the 10th day of August, 1881, at a point on the same where it was not fenced with a good and sufficient fence; and said cow was not killed on any private or public crossing of said road.
Plaintiff says, by reason of defendant's failure to fence the road, said hog and cow were killed, and by said killing of said hog and cow he is damaged in the sum of sixty dollars.
Wherefore, he asks that said sum of sixty dollars be doubled, and that he have judgment for one hundred and twenty dollars, as provided by law in such cases.
Plaintiff recovered judgment in the justice's court for double the assessed value of the hog and cow; from which judgment the defendant duly prosecuted its appeal to the circuit court of Jackson county, where on a trial, de novo, before a...
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