Rozzelle v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1883
• Citation: 79 Mo. 349
• Parties: ROZZELLE v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 349

ROZZELLE

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.

AFFIRMED.

G. W. Easley for appellant.Rozzelle & Spiker and Simrall & Sandusky for respondent.

HENRY, J.

This action was instituted in the circuit court of Clay county to recover double damages of defendant for killing four steers, the property of plaintiff. The petition alleges that the cattle “came upon the railroad track and were run over and killed at a point on the same where it passes through uninclosed lands, and at a point on said road where there was no public or private crossing,” and where said road was not fenced. Plaintiff had judgment from which this appeal is prosecuted.

1. BAILROAD: damage to cattle: complaint.

The first question relates to the sufficiency of the petition, and it is contended that “for aught that appears in the petition the animals may have been killed in a city, town or village, or at a station.” This question was recently passed upon by this court in Rutledge v. Hann. & St. Jo. R. R. Co., 78 Mo. 286, and decided adversely to defendant, and we might dispose of this by a simple reference to that case, and will only add that in speaking of the subdivisions of a tract or tracts of land embraced in town or city plats, they are almost invariably mentioned as blocks or lots, and when one speaks of a tract of land, he is understood to refer to a tract not so subdivided. The petition might, and, as the suit was commenced in the circuit court, should have been more specific, but, after verdict, we must hold it sufficient.

2. _____: duty to fence.

Appellant's counsel also insists that at the point where the cattle were killed, the defendant was under no obligation to fence. The plaintiff was driving a lot of cattle from Kansas City, north, and the four that were killed strayed from the public road and passing over the St. Louis, Kansas City & Northern Railway got upon defendant's track and were killed by a train of cars. “For some distance before you reach the crossing,” said a witness, “the defendant's track, the track of the St. Louis, Kansas City & Northern Railway, and a public road, run alongside of and parallel with each other. The track of the St. Louis, Kansas City & Northern Railway is south of and about ten feet distant from defendant's track, the public road is south of the track of the St. Louis, Kansas City & Northern Railway, and runs immediately along the edge of the embankment upon which it is built, and the...