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

• Citation: 42 Mo. 193
• Parties: WILLIAM TARWATER, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Decision Date: 29 February 1868
• Court: United States State Supreme Court of Missouri

42 Mo. 193

WILLIAM TARWATER, Respondent,

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

Supreme Court of Missouri.

February Term, 1868.

Appeal from Caldwell Circuit Court.

Hall & Oliver, for appellant.

I. The answer alleged negligence on the part of the plaintiff. Plaintiff's motion to strike out defendant's answer admitted the allegations contained in it. If either party, by his negligence, contribute to the catastrophe, he must suffer the consequences. (Kennedy v. North Missouri R.R. Co., 36 Mo. 363; Brown's Leg. Max. 201-2; 37 Mo. 549; 36 Mo. 487.)

II. The statute concerning fencing railroads does not authorize a plaintiff to recover when his own negligence contributed to the injury. (Gorman v. Pacific R.R. Co., 26 Mo. 449; March v. New York & Erie R.R. Co., 14 Barb. 365; Corwin v. New York & Erie R.R. Co., 13 N. Y., 3 Kernan, 42; Redf. on Rail. 368, note; Pierce on Rail. 336.)

III. The answer sufficiently set up the negligence of the plaintiff. All that is required is to aver negligence, and on the trial the court will determine whether the evidence offered tends to prove the allegation. (Hann. & St. Jo. R.R. v. Kenney, 41 Mo. 271.)

IV. The claim of damages, on the part of defendant, does not render the answer defective. (Yallaly v. Yallaly, 39 Mo. 490; Kinney v. Muller, 25 Mo. 579.) Under our practice act, defendant may set up as a counter claim any cause of action arising out of the transaction set forth in the petition, as the foundation of plaintiff's claim, or connected with the subject of the action, whether the amount claimed by defendant be liquidated or unliquidated. (Gen. Stat. 1865, p. 659, §§ 12, 13; Ballman v. Pierce, 3 Hill, 174; 1 Van Sandford's Plead. 545; 18 Mo. 161; 19 Mo. 125; 30 N. Y. 383; Holzbauer et al. v. Heine et al., 37 Mo. 444.) The design of the practice act was to determine all controversies respecting the subject matter of litigation in one action. (Dobin v. Pierce, 2 Kernan, 156, 165.)McFerran, for respondent.

I. Appellant's answer admits negligence on its part in killing respondent's horse, and all the facts constituting defendant's cause of action for unliquidated damages. (Powell v. Hann. & St. Jo. R.R. Co., 35 Mo. 460; West v. Hann. & St. Jo. R.R. Co., 34 Mo. 177; Brown v. Hann. & St. Jo. R.R. Co., 33 Mo. 311.)

II. The matter set up in appellant's answer cannot be pleaded in bar, or as a set-off, or as recoupment, or as a counter claim, or defense. (1 Chit. Plead. 555, 599; 13 Mo. 517; House v. Marshal, 18 Mo. 368; Nelson v. Johnson, 25 Mo. 430; Grand Lodge v. Knox, 20 Mo. 433; Hall v. Clark, 21 Mo. 415; Pratt v. Menkins, 18 Mo. 158; Brake v. Corning, 19 Mo. 125; Johnson v. Jones, 16 Mo. 494.)

III. Appellant's answer fails to set up any facts constituting negligence in the respondent.

HOLMES, Judge, delivered the opinion of the court.

This was a suit under the statute (Gen. Stat. 1865, ch. 63, p. 343) for damages in killing a horse of the plaintiff which had got on the track of the railroad, and was run over by the locomotive and train, in a part of the road that was not inclosed by a lawful fence, and was not at the crossing of a public highway.

The answer contained no specific denial of the allegations of the petition. It merely alleged that the plaintiff carelessly and negligently turned the animal out upon the uninclosed lands adjoining the railroad, and that by means of that act of gross negligence on the part of the plaintiff the animal got upon the track and was run over, whereby the cars were thrown off the track and injured to the amount of $5,000, and that the injury done to said stock was the same injury mentioned in the plaintiff's petition; and the defendant asked judgment against the plaintiff for that sum as damages.

This answer was stricken out, on motion of the plaintiff; and, the defendant failing to file any further answer, the plaintiff had judgment by default, which was affirmed on appeal to the Fifth District Court, and the case is now brought by appeal to this court.

This answer contained no special defense to the plaintiff's cause of action, nor was it a counter claim in the nature of set-off. It seems to have been intended as a counter claim existing in favor of the defendant, and against the plaintiff, between whom a several judgment might be had in the action, and as a cause of action arising out of the same transaction, on which the plaintiff's petition was founded. (Gen. Stat. 1865, ch. 165, p. 313.) It was simply a counter claim in the nature of a cross action. (Tiffany's N. Y. Prac. 378.) We think the court below committed no error in striking out the answer. The facts stated in the petition, and the case thus shown against the defendant, stood confessed for want of denial, after specific allegations made. The counter claim, as an independent cause of action arising out of the same transaction, stated no additional facts which, if true, and notwithstanding that the facts stated in the petition stood confessed as true also, would have entitled the defendant to a several judgment against the plaintiff. The negligence alleged against the plaintiff is made to consist only in his turning out the animal upon the uninclosed lands adjoining the railroad, and thus allowing it to get upon the track. In this, he did no more than he had a lawful right to do, according to the previous decisions of this court. (Gorman v. Pacific R.R. Co., 26 Mo. 441; Clark v. Hann. & St. Jo. R.R. Co., 36 Mo. 119.)

He was not bound to keep his cattle within inclosures. He had a right to allow them to range on the open prairie. It is averred that this was done carelessly and negligently. But whether or not a given state of facts and circumstances amount to negligence, or to any proof of...