Terry v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1883
• Citation: 77 Mo. 254
• Parties: TERRY v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

77 Mo. 254

TERRY

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

Thos. J. Portis for appellant.

Geo. P. B. Jackson for respondent.

WINSLOW, C.

This is an action under the 43rd section of the corporation act, now Revised Statutes, section 809, for killing stock, commenced before a justice of the peace, and appealed to the circuit court, where the plaintiff recovered judgment, to reverse which, the defendant brings the case here by appeal. The sufficiency of the complaint and the propriety of a single instruction given for plaintiff, are the only errors now insisted upon. The constitutionality of the statute is discussed, but that question has been determined since the appeal. The material part of the complaint is as follows: “That on the 15th day of said month, or about that time, the defendant was operating its engines and cars on its said road, which extended through La Monte township, Pettis county, Missouri, and while so operating the said road at said time, wrongfully ran over and upon and killed a certain three-year-old red beef steer, to the plaintiff belonging, which, without any fault on the part of plaintiff, strayed upon defendant's track. The said animal was struck and killed by defendant in said township at a point where said road passed along, through and adjoining inclosed and cultivated fields, and not a public or private road-crossing, or where the road passed through any town or city; that at said point defendant had failed to build and maintain lawful fences to prevent the said animal from straying upon its track. The value of said animal was and is $50.”

1. RAILROADS: killing stock: pleading.

The objection to this complaint is, that it does not allege that the failure to fence occasioned the injury. It is alleged that the animal, “without any fault on the part of plaintiff, strayed upon defendant's track;” that it was struck and killed “at a point where said road passed along, through and adjoining inclosed and cultivated fields,” etc., and that “at said point defendant had failed to build and maintain lawful fences, to prevent said animal from straying on its track.” There is also an allegation of negligent killing. It may be inferred from these allegations, especially the one last quoted, that the animal strayed upon the track and was killed, at a point where the road was not fenced as required by law, by reason of failure to fence. This is sufficient. Edwards v. R. R. Co., 74 Mo. 117; Williams v. R. R. Co., 74 Mo. 453; Scott v. R. R. Co., ...