Morrow v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1884
• Citation: 82 Mo. 169
• Parties: MORROW v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 169

MORROW

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

Smith & Krauthoff with T. J. Portis for appellant.

The statement in this case cannot beheld sufficient under the most liberal practice. Davis v. Railroad Co., 65 Mo. 44; Johnson v. Railroad Co., 76 Mo. 553. Nor is there any allegation from which it may be inferred, that the alleged killings were occasioned in any wise by the failure to fence. Johnson v. Railroad Co., supra,; Sloan v. Railroad Co., 74 Mo. 47; Nance v. Railroad Co., 79 Mo. 196; Dryden v. Smith, 79 Mo. 525.

F. P. Wright, for respondent.

The statement is sufficient. Farrell v. Union Trust Co., 77 Mo. 475; Terry v. Railroad Co., 77 Mo. 254.

PHILIPS, C.

This is an action to recover double damages for the killing of hogs by defendant's train of cars. Judgment in justice's court for plaintiff. On appeal to the circuit court the plaintiff filed the following amended statement on which the cause was tried:

“Plaintiff, for an amended statement herein, states that the defendant is the owner and operator of a certain railroad leading from the city of St. Louis in the State of Missouri, and passing westward through Cass county in said State, and of certain cars and locomotives running thereon. That the plaintiff was the owner of certain hogs which strayed upon the track of said railroad without the knowledge or fault of plaintiff, in Big Creek township, Cass county, Missouri, and was of the value as follows, and killed at the following times: That on the 22d day of March, 1880, the defendant ran its engine and train of cars against and over one brood sow of the value of $15; that on the 10th day of March of the same year, the defendant ran its engine and train of cars against and over one hog of the value of $6; that on the 14th day of March and in the same year the defendant ran its engine and train of cars against and over three of plaintiff's hogs of the value of $12; and at another time, and on the same day, the defendant ran its engines and train of cars over one of plaintiff's hogs of the value of $10, and at the same time the defendant ran its engine and train of cars against and over one brood sow of the value of $16; that on the -- day of August, 1879, the defendant ran its engine and train of cars against and over two of plaintiff's brood sows of the value of $30. Plaintiff says that all of said hogs strayed upon the track of defendant's road at the times and places above stated in Big Creek township, Cass county, where the said road was not fenced with a good and sufficient fence, and not on any public or private crossing of said road and without the fault of plaintiff, were killed at the times and places aforesaid, and plaintiff states that by reason of said killing of said hogs as aforesaid in the various sums aforesaid he is damaged in the sum of $85, and asks that it be doubled, and that he have judgment for the sum of $170--double the value of said hogs--with interest and costs.”

The defendant made motion to dismiss the action for various reasons, and objected to the introduction of any evidence under the statement on account of its insufficiency. All of which the court overruled. The plaintiff having again prevailed in the action, the defendant prosecutes this appeal.

The principal question for determination on this record is, does the statement sufficiently present a...