Rowland v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 30 April 1881
• Citation: 73 Mo. 619
• Court: Missouri Supreme Court
• Parties: ROWLAND v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

73 Mo. 619

ROWLAND

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Butler Circuit Court.--HON. R. P. OWEN, Judge.

REVERSED.

This was an action originally instituted before a justice of the peace upon the following statement: “Plaintiff says that defendant is a corporation; that on the 18th day of January, 1877, in Ash Hill township, in Butler county, and where the said railroad was not fenced, and where there was no public crossing, defendant, by its agents and servants did, while running its locomotive on its said railroad, strike and kill twelve head of hogs, the property of plaintiff, of the value of $12. Plaintiff prays judgment for $24, being double the value of said hogs.” The second count alleged the killing of eight hogs of the value of $32, and was in form identical with the first. The judgment of the justice having been against the defendant, it duly appealed to the circuit court, where the plaintiff filed the following amended statement. (1) “Plaintiff states that the defendant is an incorporated company under the laws of the State of Missouri, and at the times hereinafter mentioned, was the owner and occupier of the St. Louis, Iron Mountain & Southern Railroad; that on the 18th day of January, 1877, in Ash Hill township, Butler county, Missouri, and where its said railroad was not fenced, and where there was no public or private crossing on said railroad, the defendant, by its agents and servants, and while running its locomotive on said railroad, did then and there run over twelve head of hogs, the property of plaintiff, and of the value of $12, and thereby killed them; that by reason of the killing of said hogs, and by virtue of the 43rd section of chapter 63 of the General Statutes of Missouri, judgment is prayed for $24.” (2) “For a further cause of action, plaintiff says the said defendant, while running its said locomotive and train of cars, in Ash Hill township, in Butler county aforesaid, on the 15th day of November, 1877, did then and there run over eight head of hogs, the property of plaintiff, and of the value of $40, and thereby killed them; that by reason of the killing of said hogs, as aforesaid, and by virtue of the 43rd section of chapter 63 of the General Statutes of Missouri, judgment is prayed for $80, together with cost.”

William R. Donaldson and Smith & Krauthoff for appellant, cited Musick v. R. R. Co., 57 Mo. 134; Cary v. R. R. Co., 60 Mo....