Perriquez v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1883
• Citation: 78 Mo. 91
• Parties: PERRIQUEZ v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 91

PERRIQUEZ

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Osage Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

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

Belch & Silver for respondent.

PHILIPS, C.

Action for double damages for killing cow named “Doodle,” instituted before a justice of the peace in Osage county, upon the following statement:

“Plaintiff for his cause of action against the defendant, alleges that the defendant is and was at the time hereinafter referred to, a corporation duly organized under and by virtue of the laws of the State of Missouri under the corporate name of the Missouri Pacific Railway Company. Plaintiff further states that said defendant, by its agents, officers and servants, in conducting, managing and running a locomotive engine and train of cars on its said road, did, on the 6th day of May, 1879, in Linn township, Osage county, State of Missouri, run over and cripple a certain cow belonging to this plaintiff, thereby making said cow totally and entirely valueless to plaintiff, which said cow was about four or five years old, of a red and white color, and known by the name “Doodle,” to the plaintiff's damage of the sum of $20; that said cow was crippled and got on the railroad of said defendant at a point where the same runs along or adjoining uninclosed fields and lands, and where the same was not fenced with a good and lawful fence, and not at the crossing of any public highway. Wherefore plaintiff says an action has accrued to him and asks judgment in double damages so sustained, to-wit: the sum of $40, and costs.”

A motion to dismiss upon the ground of the insufficiency of this statement having been overruled, after appeal to the circuit court, the defendant excepted. Upon the trial in the circuit court there was a verdict for the plaintiff, the amount of which was on motion of plaintiff doubled, and judgment rendered accordingly, and the defendant's motions for a new trial and in arrest of judgment overruled, to all of which rulings the defendant excepted, and thereupon brings this case here by appeal.

The single question presented by this record is as to the sufficiency of the statement. It is objected that it does not allege that the point at which ““Doodle” is averred to have entered upon the railroad, was not within the limits of an incorporated city or town, nor that the killing was in anywise the result of or occasioned by any failure on defendant's part to construct a fence.

1. RAILROADS: killing stock: complaint.

It is not essential to the validity of a statement under the 43rd section in question, that it should be affirmatively averred, that the point of entry on the road was not within the limits of an...