Nance v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1883
• Citation: Nance v. St. Louis, Iron Mountain & Southern Ry. Co., 79 Mo. 196 (Mo. 1883)
• Court: Missouri Supreme Court
• Parties: NANCE v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

79 Mo. 196

NANCE

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jefferson Circuit Court.--HON. L. F. DINNING, Judge.

REVERSED.

George H. Benton and Thomas J. Portis for appellant.

Louis Wagner and B. Zwart for respondent.

HENRY, J.

This is a suit commenced in a justice's court in Iron county, to recover double damages for stock killed on defendant's road, by a train of cars.Plaintiff had judgment successively in the justice's and in the circuit court, and defendant has appealed to this court, and the only ground upon which a reversal is urged, is that the statement filed before the justice does not contain sufficient facts to constitute a cause of action.It alleges that “defendant by its agents, engines and cars killed one white steer, the property of plaintiff, at a place on its road where the same passes through, along or adjoining uninclosed lands, where defendant failed to construct lawful fences * * and by reason of such failure, against the provisions of the statute made and provided, to plaintiff's damage in the sum of $50.”

In Cecil v. Railroad Co.,47 Mo. 246, it was held that on a statement which failed to allege that the stock got on the road through a defect of cattle guard, or in consequence of a failure to fence, plaintiff could not recover, and that decision has never been questioned by this court.The railroad company under the section upon which this action is based, is not liable to the owner of stock killed or injured unless it got upon the track at a place where the company is, by law, required to fence, no matter at what place it may be killed or injured, and no decision of this court can be found in which a statement omitting that averment has been held good.In Edwards v. Railroad Co.,74 Mo. 117, andBowen v. Railroad Co.,75 Mo. 426, the...