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

• Decision Date: 31 October 1884
• Citation: 83 Mo. 507
• Parties: RUSSELL v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 507

RUSSELL

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

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

REVERSED.

M. A. Low for appellant.

The second count in the petition did not state a cause of action. It does not show even inferentially that the horse got upon the track by reason of a failure to fence or that the defendant was under any obligation to fence at the point where it was injured. Johnson v. R. R., 76 Mo. 553; Field v. R. R., 76 Mo. 614.

G. F. Ballingall and Botsford & Williams for respondent.

The petition states a good cause of action under R. S., sec. 2124. Kennayde v. R. R., 45 Mo. 225. It was not necessary for respondent to repeat in the second count the allegation of the incorporation of defendant or of its duty to fence its road where it passes through and along uninclosed lands. Aull Savings Bk. v. City of Lexington, 74 Mo. 104. It is not controverted that respondent's mare was injured at a point on appellant's road where it was not fenced and not at a crossing of a public highway and where it passed through uninclosed land, and hence it was its clear duty to fence at the place of the accident. Rutledge v. R. R., 78 Mo. 287; Robinson v. R. R., 57 Mo. 494.

PHILIPS, C.

This is an action to recover from the defendant, a railroad corporation, damages alleged to have been done by defendant's cars, etc., to the horse of plaintiff in Clay county. The petition contained three counts. The first was based on what is commonly known as the double liability section of the statute, and contained the necessary averments touching the existence of defendant as a corporation, and the circumstances of the injury, so far as to bring the action within the provisions of said section.

The second count was for single damages and is as follows: “Plaintiff further states, that the said bay mare of the value of one hundred and ten dollars, aforesaid, the property of said plaintiff, was, on the 7th day of August, 1880, at said county of Clay, on defendant's said road, injured and killed by the cars, locomotives and other carriages used on said railroad of said defendant; and that the portion of said defendant's road, where such injury to said mare occurred, was not, at said time, inclosed by a lawful fence, and was not, then and there, the crossing of any public highway. Wherefore plaintiff prays judgment for said sum of one hundred and ten dollars and costs.”

The third count was drawn so as to meet the case of the road being jointly occupied at the point in question by defendant and the Chicago, Rock Island and Pacific Railway Company. The answer tendered the general issue as to all the counts.

On an instruction asked by the plaintiff, the jury found the issues as directed, for the defendant as to the first and third counts, and brought in a verdict for plaintiff on the second count for single damages. From this judgment defendant prosecutes this appeal.

I. At the close of plaintiff's evidence the defendant asked an instruction in the nature of a demurrer to the petition and the evidence, which the court refused to give. So the first question presented for determination by the appellant is, as to the sufficiency of the second count of the petition on which the recovery was had. This count was founded, and is sought to be sustained on section 2124 of what is known as the damage act. It reads as follows: “When any animal or animals shall be killed or injured by the cars, locomotive or other carriages used on any railroad in this state, the owner of such animal or animals may recover the value thereof, in an action against the company or corporation running such railroad, without any proof of negligence, unskilfulness or misconduct, on the part of the officers, servants or agents of such company; but this section shall not apply to any accident occurring on any part of such road that may be inclosed by a lawful fence, or in the crossing of any public highway.”

The count of the petition in question sufficiently pursues this section of the statute, in all essential particulars, until it comes to the statement of the matter of exception contained therein. No allegation of negligence is required to be made in the petition, nor any proof thereof need be made, where the point of injury is such that the defendant might have inclosed its road by a lawful fence. But it is at once apparent that the company is not liable for such damage merely because of the absence of a fence. This, for the simple reason that there are places on the line of railroads where they are not permitted to fence, or could not do so on account of interfering with the right of ingress or egress by the public to and over the road. They are neither required nor permitted to fence in their tracks where they run through incorporated towns, laid off into streets and thoroughfares, nor to fence up their stations. Lloyd v. P. R. R., 49 Mo. 199; Edwards v. Han. & St. Jo. R. R., 66 Mo. 567.

Therefore the significance of the language of the statute, making the company liable for damages occurring on a portion of its road where it “ may be inclosed with a lawful fence,” becomes obvious. The company is not liable on account of the absence of such fence, unless it appears that it be at a point where it “““may” inclose its road.

The second count avers only that the road was not “inclosed by a lawful fence.” It does not, in the language of the exception contained in the statute, aver that the defendant might have inclosed its road at that point with a lawful fence. The allegation of the petition might be entirely true in fact, and yet the place may not be such as the defendant would be authorized to erect a fence there. There is no fact averred from which the inference might even be drawn that the place was not at a station or inside of a town laid out and occupied, in the vicinity, by streets, alleys and thoroughfares. It is a well-settled rule of pleading that where, in the same section in which the right of action is given, the exception is contained, and it is manifest that the plaintiff cannot recover without negativing the exception, the petition must be so framed as to clearly show that the defendant is not within the exception. Williams v. Hingham, 4 Pick. 347; State ex rel. Ladd v. Clark, 42 Mo. 523. This is precisely the case at bar.

It is suggested, however, that the allegation in the count that the road at the point of injury “was not inclosed with a lawful fence” is tantamount to the language, “may be inclosed.” The argument in support of this proposition is that “a lawful fence,” implies that the fence is one which the law permits to be built; that if the law did not permit it to be built at the given point, it would not be a lawful fence.

This reasoning, we think, is more specious than sound. The word “lawful,” in the connection found in this statute, applies merely to the quality of the fence, its height, material, etc. The statute concerning inclosures defines what is a lawful fence, and when section 2124 speaks of a lawful fence, it means a fence as defined by the statute. The defendant could not excuse himself from liability by erecting, at a point where he might build, other than a lawful fence according to the statutory standard. The word “may” is the descriptive term as to the power, the right, to build the fence. Plaintiff's counsel undertakes to escape from the omission of the required averment, in this count, by the further claim that he had averred in the preceding count the place of injury to be where defendant was required to fence, and, therefore, it was not necessary to re-state the fact in the second count; citing in support the case of Aull SavingsBank v. The City of Lexington, 74 Mo. 104. But that case asserts only the well-settled rule of pleading, that where the first count contains the requisite averment as to the corporate existence of either of the parties to the action, it is not necessary to reaffirm the fact in the succeeding counts.

Mere matters of inducement need not be re-stated. But substantive facts, constituting the cause of action, should be alleged in each count. Bliss on Code Pleading, sec. 121, states the rule thus: “It (the count) must contain all the facts which constitute the cause of action embraced in it, and its defects cannot be supplied from the other statements.” Chitty on Pleadings, Vol. 1, p. 249, after admitting the rule as above stated respecting matters of inducement, says: “But unless the second count expressly refers to the first, no defect therein will be aided by the preceding count; for though both counts are in the same declaration, yet they are for all purposes as distinct as if they were in separate declarations, and consequently, they must independently contain all necessary allegations, or the latter count must expressly refer to the former.” There is no such reference in the second count under consideration to the constitutive facts claimed to be recited in the first count as would aid the...