Seidel v. Quincy, Omaha & Kansas City Railroad Company

• Decision Date: 07 November 1904
• Citation: 83 S.W. 77,109 Mo.App. 160
• Parties: FRANK SEIDEL, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

83 S.W. 77

109 Mo.App. 160

FRANK SEIDEL, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Affirmed.

J. G Trimble and Wilson & Clapp for appellant.

(1) Sec. 1105, Revised Statutes 1899, is a penal statute, and every fact necessary to be proven to bring the case within terms of the statute must be alleged. Manz v Railroad, 87 Mo. 278; R. S. 1899, secs. 3294-5. (2) In the absence of an allegation to the contrary the law presumes that the fences inclosing a field are lawful fences, as it is presumed that everyone performs his engagements and duties. McCallister v. Ross, 155 Mo. 87. (3) Where the field is inclosed, the statement must allege either that plaintiff was the owner of the field, or state facts showing that the animal was lawfully in the inclosure. Ferris v Railroad, 30 Mo.App. 122; Board v. Railroad, 36 Mo.App. 151; Harrington v. Railroad, 71 Mo. 384; Rinehart v. Railroad, 80 S.W. 910. (4) It was reversible error to give plaintiff's second instruction. Where plaintiff, as in this case, must produce parol evidence to support his action, the court has no right to give a peremptory instruction to the jury to find for him. Wolff v. Campbell, 110 Mo. 114; Huston v. Tyler, 140 Mo. 252; Gordon v. Burrus, 141 Mo. 602; Ford v. Dyer, 148 Mo. 528; Dalton v. Poplar Bluff, 173 Mo. 37; Vincent v. Means, 82 S.W. 96.

J. P. Painter for respondent.

(1) Appellant's statements, its reasoning and its citations on the first and second assignments of error are clearly held for naught by the following opinions in which the court holds that "a trespasser," such as is argued by appellant, "is a thing to be proved and not presumed," and there is not a syllable of evidence to indicate that the animal in question was a trespasser, but, on the other hand, the evidence shows conclusively that it was lawfully in the field of respondent and escaped upon the right-of-way over or through appellant's unlawful fence and at a point where appellant was required by law to maintain good and lawful fences. Jantzen v. Railroad, 83 Mo. 171; Fraysher v. Railroad, 66 Mo.App. 573; Duke v. Railroad, 39 Mo.App. 105.

OPINION

BROADDUS, J.

This is a suit under section 1105, Revised Statutes 1899. The proceeding was instituted before a justice of the peace. As one of defendant's contentions is that the complaint does not state a cause of action, it is inserted in this opinion as follows:

"Statement: Plaintiff states that on the twenty-ninth day of April, 1903, the defendant was, and now is, a corporation running and operating a railroad through Duncan township, in Sullivan county, Missouri, an adjoining township of aforesaid Bowman township; that on said day plaintiff was the owner of a certain steer calf, to-wit: a red calf with white face, of the age of two months of the value of $ 20; that said calf on said day strayed in and upon the track and grounds occupied by the said railroad of defendant, at a point where said road passes through inclosed fields, at and in the township of Duncan, in Sullivan county, Missouri, and at a point where said defendant was by law required to erect and maintain good and lawful fences and not at a public crossing, nor within an incorporated city, town or village. That said calf strayed and went in and upon said railroad track and grounds by reason of the failure and neglect of defendant to erect and maintain good and lawful fences on the sides of its said road where said calf entered upon the same as aforesaid. That defendant, by its agents and servants, ran its engines and cars upon and against said calf, at said point in Duncan township, on the twenty-ninth day of April, 1903, thereby killing said calf, to plaintiff's damage in the sum of twenty dollars; wherefore, plaintiff prays judgment for forty dollars, being double the damages sustained, as provided in section 1105, vol. 1, Revised Statutes 1899, together with costs."

The evidence was to the effect that plaintiff's calf got upon defendant's track at a point where it was not inclosed by a lawful fence and was killed by one of defendant's passing trains. There was no evidence that at the place the calf got upon the track the railroad passed through an inclosed field. But as both sides in their argument concede that it did, we may assume such to be the fact. Nor is there any evidence that the field in question was owned or occupied by plaintiff. The only evidence on this point was that plaintiff resided on a farm in Duncan township, Sullivan county, and that said township adjoined...