Ringo v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 16 May 1887 |
| Parties | Ringo v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court. -- Hon. J. D. Foster, Judge.
Affirmed.
Smith Silver & Brown and T. J. Portis for appellant.
(1) The statement fails to allege facts sufficient to constitute a cause of action. Rowland v. Railroad, 73 Mo. 619; Bates v. Railroad, 74 Mo. 60; Schultz v Railroad, 76 Mo. 324; Manz v. Railroad, 87 Mo 278. (2) The evidence fails to show that plaintiff's animal got on the defendant's track at a point where it was bound, by law, and had failed, to maintain a lawful fence. Hendrick v. Railroad, 81 Mo. 521; Cecil v. Railroad, 47 Mo. 246; Nance v. Railroad, 79 Mo. 196; Manz v. Railroad, 87 Mo. 278; Morrow v. Railroad, 82 Mo. 169; Ather v. Railroad, 79 Mo. 432; Schultz v. Railroad, 76 Mo. 324; Hudgen v. Railroad, 79 Mo. 418; Bates v. Railroad, 74 Mo. 60. The evidence only shows where the plaintiff's animal was killed, which was immaterial. Dryden v. Railroad, 79 Mo. 525; Cecil v. Railroad, 47 Mo. 246.
Marshall Arnold for respondent.
(1) It was not necessary that the statement should contain the averment that the point at which the animal entered upon the defendant's railroad track "was not within the limits of an incorporated city or town." It is sufficient if it aver that the place where the animal entered was where the track passed through, along, or adjoining enclosed fields and not at the crossing of a public highway. Farrell v. Union Trust Co., 77 Mo. 475; Terry v. Railroad, 77 Mo. 254; Perrequez v. Railroad, 78 Mo. 92; Wade v. Railroad, 78 Mo. 362; Rozzelle v. Railroad, 79 Mo. 349; Williams v. Railroad, 80 Mo. 597: Johnson v. Railroad, 80 Mo. 620; Moore v. Railroad, 80 Mo. 499; Briggs v. Railroad, 82 Mo. 37; Thomas v. Railroad, 82 Mo. 538: Jantzen v. Railroad, 83 Mo. 171; Manz v. Railroad, 87 Mo. 278. (2) The evidence of plaintiff established that the animal was not killed within the limits of an incorporated town or village, nor at any railroad crossing, but at a point on said railroad where the same passes along, through, and adjoining cultivated fields and farm lands, and at a point on the road that was not fenced at all. There was no positive evidence that the animal entered at that point. This is not required. But that it did enter at the point where killed, and where there was no fence, is the irresistible inference from the facts proved. Moreover, the onus here rested on the defendant. Lantz v. Railroad, 54 Mo. 228; Walthers v. Railroad, 78 Mo. 617; Gee v. Railroad, 80 Mo. 283; Jantzen v. Railroad, 83 Mo. 171.
This is a suit commenced in a justice's court to recover double damages, under section 809, Revised Statutes, 1879, for a mare killed on defendant's road by a train of cars. The plaintiff had judgment before the justice, and in the circuit court, and the defendant appeals to this court.
The case was tried before the court, without a jury. On the trial, the defendant objected to the introduction of any evidence, for the reason that no cause of action was stated. The only ground upon which it is here urged that the statement upon which the case was tried is insufficient, is that it is not alleged therein that the plaintiff's mare entered upon the defendant's track at a point not within the limits of an incorporated city or town. The averments in the statement, in this respect, are, that "said killing took place at a point on said railroad where the same passes through, along, and adjoining cultivated and inclosed farm land, and not in the crossing of a public highway, or at any crossing of the road, whatever," and that, "at the point aforesaid, the mare strayed and got upon the track, and was killed."
It is not necessary that the statement should contain an express averment that the point at which the animal got upon the track was not within the corporate limits of an incorporated city or town. It is sufficient if that fact appears by necessary implication from the facts contained in the statement. Manz v. Railroad, 87 Mo. 278. It is sufficient if the facts stated negative the presumption that it might have occurred within the corporate limits of an incorporated city or town. Perriquez v. Railroad, 78 Mo. 91. The averment that the animal entered upon the track at a point where the railroad "passes along, through and adjoining an inclosed field," negatives the presumption that the entry might have occurred within the corporate limits of an incorporated city or town. Williams v. Railroad, 80 Mo. 597. The allegation, in this case, that the animal "got upon the track at a point where said railroad passes through, along, and adjoining cultivated and inclosed farm land," by necessary implication, negatives any presumption that the entry might have occurred within the corporate limits of an incorporated city or town. Perriquez v. Railroad, and Williams v....
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