Rosentingle v. Illinois Southern Railway Co.

• Decision Date: 05 February 1907
• Citation: 99 S.W. 788,122 Mo.App. 492
• Parties: ROSENTINGLE, Respondent, v. ILLINOIS SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

99 S.W. 788

122 Mo.App. 492

ROSENTINGLE, Respondent, v. ILLINOIS SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 5, 1907

Appeal from St. Francois Circuit Court.--Hon. Charles A. Killian Judge.

AFFIRMED.

Judgment affirmed.

W. S Anthony for appellant.

(1) The petition fails to state a cause of action under section 1105, Revised Statutes 1899, and confers no jurisdiction on the court. R. S. 1899, sec. 1105; Wood v. Railroad, 30 Mo.App. 63; Ward v. Railroad, 91 Mo. 168. (2) There is no testimony tending to show that the alleged destruction of crops occurred in any township, or that it occurred in a township adjoining Iron township, in St. Francois county. Unless this is shown no jurisdiction is conferred on the circuit court. Jones v. Railroad, 52 Mo.App. 381.

D. L Rivers for respondent.

(1) Plaintiff's petition is in the usual form and pleads every fact necessary to confer jurisdiction in the court of first instance. The record shows jurisdiction and plaintiff's petition is full and complete on this point. R. S. 1899, sec. 1105. (2) In an action against a railroad for the destruction of crops under section 1105, it is not necessary to show the injury occurred in the township in which the suit is brought, or an adjoining township. R. S. 1899, sec. 3835.

OPINION

BLAND, P. J.

--The action was brought before a justice of the peace in Iron township, St. Francois county, Missouri, and in due course was appealed to the circuit court. The complaint is in two counts. A demurrer to the evidence on the second count was sustained by the trial court. The first count (omitting caption) is as follows:

"Plaintiff states that the defendant is and was at all the times hereinafter mentioned, a corporation owning and operating a railroad in the county of St. Francois and the townships of Randolph and Iron therein adjoining same. That plaintiff is and was at the time hereinafter mentioned the owner and occupier of a certain farm in Randolph township aforesaid, known as the McCrary place, about one mile north of Bismarck on which plaintiff then resided and now resides. That defendant's said railroad ran and runs along, through and by plaintiff's said farm.

"That defendant failed and neglected to erect and maintain lawful fences on the sides of said railroad where the same passed through, along and adjoining the inclosed and cultivated fields on plaintiff's said farm--and also to construct and maintain cattle-guards where fences are required sufficient to prevent horses, cattle, mules and other animals from getting on the said railroad. That by reason of such failure to erect fences and cattle-guards as required by law, in the months of September, October and November in the year 1903, horses, cattle, mules and other animals came into said fields and destroyed corn and potato crops of plaintiff then and there being to-wit--about four acres of corn of the value of $ 50 and three-fourth acres of potatoes of the value of $ 50, to plaintiff's damage in the sum of $ 100, for which he asks judgment and that the same be doubled under the statutes."

The evidence offered by plaintiff tended to establish his cause of action. The countervailing evidence offered by defendant was slight. The jury found the issues for plaintiff and assessed his damages at fifty dollars, which were doubled by the court, on motion of plaintiff, and judgment was rendered for one hundred dollars, from which defendant appealed.

1. Defendant's demurrer to plaintiff's evidence covers both counts, and it contends the demurrer should have been sustained to the first, as well as to the second, for the reason the first count fails to state any cause of action. The first count is not artificially drawn, but the essential allegations to constitute a cause of action are stated, though in a disconnected manner. In substance, it states plaintiff owned a farm in Randolph township, St. Francois county; that defendant's railroad run through his cultivated and inclosed fields; that defendant failed to erect and maintain fences along the sides of its railroad, where the same passes through plaintiff's inclosed and cultivated fields, and also failed to put in proper cattle-guards, by reason of which cattle escaped upon defendant's right of way and onto plaintiff's cultivated lands and destroyed his crops of corn and potatoes. These allegations, we think, meet all the requirements of section 1105, Revised Statutes 1899, on which the action is based.

2. The complaint alleges that plaintiff's farm is situated in Randolph township, and that he resides on his farm. Plaintiff testified he lived in St. Francois county, about one...