Porter v. Illinois Southern Ry. Co.

• Citation: 137 Mo. App. 293,117 S.W. 680
• Parties: PORTER et ux. v. ILLINOIS SOUTHERN RY. CO.
• Decision Date: 23 March 1909
• Court: Court of Appeal of Missouri (US)

117 S.W. 680

137 Mo. App. 293

PORTER et ux. v. ILLINOIS SOUTHERN RY. CO.

St. Louis Court of Appeals. Missouri.

March 23, 1909.

1. PLEADING (§ 433) — DEFECTS — AIDER BY VERDICT.

Under Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), requiring railroad companies to fence their rights of way through cultivated fields and to maintain cattle guards, and making them liable for damages caused by stock coming upon the fields through failure to comply with the requirement, a petition for such damage was not insufficient after verdict for failing to allege that the stock came into plaintiff's fields where the railroad passed through a cultivated field, where it alleged that defendant operated a road through plaintiff's farm containing cultivated fields, that defendant failed to fence the right of way and to maintain cattle guards, and that animals came into the field through such failure.

2. PLEADING (§ 428)—PETITION—DEFECTS— METHODS OF ATTACK.

The practice of challenging the sufficiency of a petition on oral objection to the introduction of evidence is not favored, and is available only when the petition is fatally defective after verdict.

3. PLEADING (§ 433)—PETITION—DEFECTS— CURE BY VERDICT.

Rev. St. 1899, § 672 (Ann. St. 1906, p. 686), providing that no judgment shall be reversed for omission from the statement of the cause of action of any averment without proving which there could have been no recovery, is merely declaratory of the common-law rule that a verdict will aid a cause of action defectively stated.

4. RAILROADS (§ 103)—FENCES AND CATTLE GUARDS—DUTY TO MAINTAIN.

Under Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), requiring companies "operating" railroads to maintain fences and cattle guards, it is immaterial who owns the road.

5. RAILROADS (§ 104) — FENCES — MAINTENANCE — RIGHTS OF ADJOINING OWNERS.

A landowner may waive Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), requiring railroad companies to fence their roads and estop himself to claim damages arising from a company's failure to do so by contracting for a consideration to fence for the company.

Appeal from Circuit Court, St. Francois County; J. C. Sheppard, Judge.

Action by E. W. Porter and wife against the Illinois Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. J. Stanton and W. S. Anthony, for appellant. D. L. Rivers and R. C. Tucker, for respondents.

NORTONI, J.

This is a suit for damages alleged to have accrued to the plaintiffs by reason of animals escaping from the unfenced railroad right of way of defendant into the plaintiffs' fields and destroying their crops. Plaintiffs recovered, and the defendant appealed.

The first point for consideration relates to the sufficiency of the statement of the cause of action. The cause originated before a justice of the peace, and the petition is somewhat informal, as is usual in those courts. Notwithstanding the informalities, we are of opinion that it contains averments of material facts sufficient to constitute a cause of action under the statute. Section 1105, Rev. St. 1899 (Ann. St. 1906, p. 945). No demurrer was interposed, and the only question with which we are concerned is the sufficiency of the cause of action stated, after verdict. After averring the defendant is a corporation operating a railroad, the petition alleges, substantially: That at the time of the grievances complained of plaintiffs occupied a farm in Randolph township in St. Francois county, through which farm defendant's railroad passed, and at the time plaintiffs had on said farm growing and standing crops of corn, wheat, hay, etc.; that defendant, although operating its railroad through their farm, neglected to erect and maintain lawful fences on the sides of its said railroad where the same ran through plaintiffs' fields on said farm in Randolph township aforesaid; and that by reason of the defendant's failure to erect and maintain fences and cattle guards along and across its said railroad, as required by the statute, horses, mules, cattle, and other animals came into and upon the fields and inclosed lands of the plaintiffs and destroyed various and sundry crops there growing and standing. The crops alleged to have been destroyed were wheat and corn in the fields, and hay and grain in the stack. The point made against the sufficiency of the statement is, if we understand it, that it is insufficient for the reason it does not formally allege the "animals came upon the plaintiffs' fields at a place where the railroad passes through, along, or adjoining inclosed or cultivated fields or uninclosed lands."

We do not concur in the view that the formal allegation referred to is absolutely essential to the statement of a cause of action, under the statute, for the loss of crops by the invasion of animals from the railroad right of way because of the railroad's failure to erect and maintain sufficient fences. Section 1105 of our statutes (Rev. St. 1899), in so far as pertinent here, provides that: "Every corporation * * * operating any railroad in this state, shall erect and maintain lawful fences on the sides of the road where the same passes through * * * cultivated fields * * * and also construct and maintain cattle guards, where fences are required, sufficient to prevent horses, cattle, mules and other animals from getting on the railroad; and until fences * * * and cattle guards as aforesaid shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done * * * by reason of any horses, cattle, mules, or other animals * * * coming upon said fields * * * occasioned by the failure to construct or maintain such fences or cattle guards." The statement of the cause of action sets forth the material facts: First, that the defendant was operating the railroad which passed through the plaintiffs' farm; and, second, the farm appears to have been cultivated fields, within the meaning of the statute. In these fields there were growing cultivated crops of corn and wheat. Besides, there were hay and grain in the stack. It avers, too, that the defendant had failed and neglected to erect and maintain fences along the sides of its railroad passing through the fields, as required by statute, and had also failed to erect and maintain a cattle guard thereat, and that the animals came into plaintiffs' fields and destroyed his crops by reason of the...