Stanley v. Missouri Pacific Ry. Co.

• Citation: 84 Mo. 625
• Parties: STANLEY v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 31 October 1884
• Court: Missouri Supreme Court

84 Mo. 625

STANLEY

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cass Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

Robert Adams and George N. Bowles for appellant.

One of the questions presented by this record is, is the defendant liable under the double damage act for injuring and killing swine entering upon its track in counties where the act to prevent swine from running at large has been adopted pursuant to the provisions of the act? Section five of the act, Session Acts of 1879, page 158, provides: “That where said vote was taken and resulted in favor of restraining swine from running at large; and it shall not be lawful for swine of any age or description to run at large off the premises and outside of the inclosure of the owner of such swine in such county.” In Kansas, where a similar statute exists, it has been held repeatedly that the obligation of the owner to restrain his animal, and that of the railroad company to fence its right of way, are of equal force, and he who disregards the one cannot recover of the other for injury resulting alone from their concurrent disregard of statute obligations. Ry. Co. v. Lea, 20 Kansas 353; Ry. Co. v. Landis, 24 Kansas 406; Ry. Co. v. Dyche, 28 Kansas 200; Ry. Co. v. Mossman, 30 Kansas 336. Our statute goes further than the Kansas statute and provides that it shall not be necessary for any person to fence against swine in any county in which it shall be unlawful for the same to run at large. Section 12, Session Acts of 1879, page 160. The statement in this case cannot be held sufficient, and the instruction asked at the close of plaintiffs testimony, to find for defendant, should have been given. The petition contains no allegation that the point where the animals got on to defendant's track was not at a public or private crossing, nor that it was not within the limits of an incorporated town or city, nor is there any allegation in the petition from which these facts may be inferred. It is within the range of numerous decisions and fails to state facts sufficient to constitute a cause of action. Schulte v. St. L., etc., Ry. Co., 76 Mo. 324; Davis v. M., K. & T. Ry. Co., 65 Mo. 441; Rowland v. St. L., etc., Ry. Co., 73 Mo. 619.

Comingo & Slover for respondent.

Plaintiff's hogs were in his lawful inclosure when they escaped under defendant's fence and went on its track; defendant was required to erect the fence of this inclosure on the side of its road (R. S., sec. 809), and unless it filled the requirements of section 809, the railroad is liable for damages resulting from its negligence. Section 5 of the hog law, and section 809, supra, must be construed together. The statutes of Kansas are wholly unlike ours, and the Kansas cases cited by appellant are not applicable to the case at bar. Defendant's motion in arrest was properly overruled. Though it is not expressly stated in the complaint filed by plaintiff, that the point at which his swine got on defendant's track was not at a public or private crossing, nor that it was not within the limits of an incorporated town or city, it is alleged that they got on at a place on said road where defendant was required by law to erect and maintain a lawful fence on the side of its road. This is sufficient. Bowen v. The H. & St. Jo. R. R. Co., 75 Mo. 426; Edwards v. K. C., St. Jo & C. B. R. R. Co., 74 ib. 117. Even if the complaint were insufficient for the reason alleged, the defect has been cured by the admissions of defendant at the trial. The agreed statement admits that the hogs got on the track and were killed at a point not on a public or private crossing, nor in the corporate limits of an incorporated town or city.

DEARMOND, C.

Plaintiff's statement, filed with a justice of the peace of the proper township, contains, among other things, the following: “That on or about the eighth day of August, 1881, said defendant owned and was operating a railroad through Pleasant Hill township, Cass county, Missouri, and while so operating the same at the time above stated, at a place on said road in said Pleasant Hill township, where it is required by law to erect and maintain lawful fences on the sides of its road, but had failed to do so, by reason of which plaintiff's hogs strayed onto defendant's railroad track, and said defendant, by its agents and employes, ran an engine and train of cars over and upon five hogs, the same being the property of plaintiff, and of the value of fifty dollars, by reason of which said hogs were killed, and the plaintiff damaged in the sum of fifty dollars, for which he asks judgment, and that said damages be doubled,” etc.

Afterwards, in the circuit court, the cause was tried on the statement filed with the justice, and the agreed facts, to-wit: “That defendant's train, on the first of August, 1881, ran over and killed five of plaintiff's hogs, of the value of fifty dollars. That said hogs got on defendant's track from plaintiff's land; that it was not woodland; that defendant's road was fenced at the point where plaintiff's hogs got on the track, and where they were killed; that it was not on a public crossing, nor a private crossing, nor in the corporate limits of an incorporated town or city; that the land where the hogs got on defendant's track was not laid out in town lots; that the accident did not happen within the switch limits of a station; that the stock got from a field of plaintiff's on the line of defendant's road; that said field was, at the time of the accident, enclosed on the east, west and north sides by a good fence, but that plaintiff had not built a fence on the south side of said field next the line of defendant's road; that defendant had a fence along the line of its road at said point sufficient to turn cattle and horses; that plaintiff's hogs got on the track by passing under said fence at a point where it crossed a washout or ditch, of a depth that was sufficient to permit the hogs to pass under said fence, and that the accident occurred in Pleasant Hill township, Cass county, Missouri. It is further admitted that the act of the legislature of Missouri, known as the Hog Law, had been adopted by a vote of the people of said county prior to the time of said accident and was then in force.”

Plaintiff recovered judgment for one hundred dollars and defendant appealed.

I. In the motion in arrest (which, as well as a motion for a new trial, was overruled), the statement is attacked as not stating facts sufficient to constitute a cause of action. On argument here the objection is made specific, and attention is directed to the fact that it is not averred that the point where the hogs...