Thomas v. Hannibal & St. Joseph R.R. Co.
Citation | 82 Mo. 538 |
Parties | THOMAS v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant. |
Decision Date | 31 October 1884 |
Court | United States State Supreme Court of Missouri |
Appeal from Clinton Circuit Court.--HON. GEO. W. DUNN, Judge.
AFFIRMED.
George W. Easley for appellant.
(1) The statement does not state facts sufficient to constitute a cause of action. Luckie v. Railroad Co., 67 Mo. 245; Sloan v. Railroad Co., 74 Mo. 48; Bates v. Railroad Co., 74 Mo. 60; Johnson v. Railroad Co., 76 Mo. 553. (2) The statute required the fence, so far as this case is concerned, for the benefit of King, the adjoining owner. Berry v. Railroad Co., 65 Mo. 172; Harrington v. Railroad Co., 71 Mo. 384; McDonnell v. Railroad Co., 115 Mass. 564. King, the owner, having contracted with the defendant relieving it from its liability for stock killed in his field for want of a fence, the plaintiff, his tenant, cannot recover. Pierce on Railroads, p. 423.
J. M. Lowe for respondent.
This was a suit under the double damage clause for killing stock upon the following statement:
There was a judgment against the defendant before the justice and before the circuit court whence the case comes here by appeal.
I. The first point made by the appellant is, that the statement before the justice was not sufficient to constitute a cause of action, in that it fails to state that the horse was killed by reason of the failure to fence the road. The complaint states that the defendant's road ran through his farm where it had not fenced its road as the law directs; that plaintiff's horses went upon said road “at the point on said road described above, where the road is not fenced so as to prevent stock from their track, the point being a few yards north of the south line of Clinton county, in Jackson township, Missouri, and that on the 14th of April, the west bound train struck said horse,” etc. We think the implication here is irresistible, that the failure to fence caused the injury complained of, and the statement must be held sufficient, especially after verdict. Terry v. Mo. Pac. R'y Co., 77 Mo. 254, and cases there cited.
II. The second instruction asked by the defendant and refused, was as follows:
2. If Austin R. King was the owner of the field in proof and had entered into an agreement with an agent of defendant, that in consideration that defendant would not fence its right of...
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......512, 6 [59 Fla. 143] S.Ct. 110, 29 L.Ed. 463; Thomes v. Hannibal & St. Joseph R. R. Co., 82. Mo. 538. . . Verily,. the ......
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