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

• Decision Date: 19 November 1906
• Citation: 122 Mo. App. 177,99 S.W. 14
• Parties: PEERY v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Court of Appeals

99 S.W. 14

122 Mo. App. 177

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

Kansas City Court of Appeals. Missouri.

November 19, 1906.

Rehearing Denied January 14, 1907.

1. PLEADING—AMENDMENT—SUBSTITUTION OF OTHER CAUSE OF ACTION.

In actions ex delicto, the wrongful act complained of is the cause of action, and an amendment of the petition should not be permitted where the effect would be either to substitute as a cause of action a wrongful act different from that alleged in the original petition, or to inject such wrong into the case as an additional cause.

2. RAILROADS—KILLING ANIMALS ON TRACK— PLEADING—AMENDMENT.

A petition, in an action against a railroad company for killing an animal on its track, alleged that the company failed to maintain a lawful fence along its right of way. An amendment alleged, in a separate count, that the company maintained a gate in the fence, and negligently permitted the gate "to remain open * * * out of repair * * * and in such condition that it could not be easily opened and shut." Held, that the amendment was properly allowed it merely alleging a failure of the company to maintain a fence along its right of way, as required by Rev. St. 1899, § 1105.

3. PLEADING—AMENDMENT.

Where the amendment to a petition, in an action ex delicto, contained no new cause of action, and was properly allowed, it was not error to make the amendment subject of a separate count.

4. RAILROADS—KILLING ANIMAL ON TRACK— FAILURE TO FENCE—LIABILITY.

A railroad company is not liable for injuries to stock killed on its track, proximately resulting from the wrongful act of a stranger in making an opening in a right of way fence maintained as required by Rev. St. 1899, § 1105, but, if by the exercise of reasonable care it could have discovered the defect in the fence, and repaired it before the accident, it is liable; its negligence being the direct cause of the injuries inflicted.

5. SAME—NEGLIGENCE—QUESTIONS FOR JURY.

In an action against a railroad company for killing an animal on its track, evidence examined, and held that the question of the company's negligence in failing to repair its right of way fence torn down by a stranger was for the jury.

6. SAME—STATUTES—CONSTRUCTION.

Under Rev. St. 1899, § 1105, requiring every railroad to maintain lawful fences on the sides of its road where the same passes through cultivated fields, etc., a railroad company failing to maintain proper fences is liable for the killing of an animal which first left the land of the owner, and trespassed on land adjacent to the right of way, and from there escaped onto the right of way in consequence of a defect in the fence.

7. TRIAL—SUBMISSION TO JURY OF UNCONTROVERTED FACTS.

Where, in an action against a railroad company for killing an animal on its track, the evidence of both parties established the necessity of a farm crossing at the place where the animal entered the track, and where the company maintained a crossing, the instructions properly omitted to submit to the jury as an issue the necessiay of a crossing at the place where the company maintained it.

Error to Circuit Court, Grundy County; G. W. Wannamaker, Judge.

Action by Henry T. Peery against the Quincy, Omaha & Kansas City Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

J. G. Trimble and Hall & Hall, for plaintiff in error. Hugh C. Smith, for defendant in error.

JOHNSON, J.

Action begun in a justice court to recover double damages under section 1105, Rev. St. 1899, for the killing of a heifer. A trial in the circuit court resulted in a verdict for plaintiff in the sum of $22.50, judgment was entered for double that amount, and defendant brought the case here on writ of error.

In the statement filed when the action was brought, the cause of action pleaded is the act of defendant described in the following averment: "That defendant on said 30th day of May, 1904 [the date the animal was killed] and for a long time prior thereto, failed and neglected to keep and maintain a lawful fence on the sides of its track, but suffered the fence on the south side of the track at the point where said heifer got upon the track and was killed, as aforesaid, to be and remain down and out of repair, so that at the time when said heifer went upon said railroad track there was not at said point a lawful fence inclosing said tract," etc. After the case reached the circuit court, plaintiff filed an amended petition containing two counts. In the first, the facts alleged were a repetition of those alleged in the original statement. In the second, it was averred that defendant maintained a gate in the fence on the south side of its right of way, and the negligence charged is that defendant "negligently and carelessly suffered and permitted said gate * * * to remain open, unhung, out of repair, without hooks or latches, open, and in such condition that it could not be easily opened and shut, and failed to keep and maintain posts to which said gate could be hung or fastened, latched or hooked, and the fence on each side of said gate to be and remain down and out of repair" and it is alleged that the heifer entered the right of way through the opening in the fence caused by the condition of ill repair, in which the gate and adjacent fence were suffered to remain, and by defendant's failure to keep the gate closed. Defendant then filed a motion to strike out the amended petition, on the grounds that it contained a cause of action not embraced in the original statement and that the new cause pleaded was a departure from that on which the case was tried in the justice court. This motion was overruled, and defendant answered and went to trial.

Defendant complains of the overruling of the motion as an error committed against it. Satisfied with the propriety of the ruling of the learned trial jude, we will dispose of the subject of this assignment on its merits. In actions ex delicto, the wrongful act of which complaint is made is the cause of action, and we readily concede an amendment of the petition should not be permitted where the effect would be either to substitute, as the cause of action a wrongful act different from that alleged in the original petition or to inject such wrong into the case as an additional cause. Knight v. Railroad (Mo. App.) 96 S. W. 716. But we do not discover such result in the amendment made by plaintiff in the present case. The same wrong is the subject of each count, and the damage alleged to have been suffered is the same in one as in the other. Defendant argues that the negligent failure of a railroad company to maintain a lawful fence along its right of way is a different wrong from that involved in negligently failing to maintain a lawful gate in such fence at a farm crossing. But this is not so. A gate of this character is a part of the fence, and proof...