Wardell v. The Chicago, Rock Island & Pacific Railway Company
| Decision Date | 29 April 1912 |
| Citation | 146 S.W. 813,163 Mo.App. 303 |
| Parties | RICHARD P. WARDELL, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burnes, Judge.
AFFIRMED.
Judgment affirmed.
Paul E Walker and E. C. Hall for appellant.
Defendant's demurrer and its objection to any evidence under the pleadings should have been sustained. Corcoran v Railroad, 138 Mo. 417; Boyle v. Railroad, 21 Mo.App. 416; Hurd v. Chappell, 91 Mo.App. 322; Manz v. Railroad, 87 Mo. 278; Ehret v Railroad, 20 Mo.App. 251; Ward v. Railroad, 91 Mo. 168; Brassfield v. Patton, 32 Mo.App. 572; Nance v. Railroad, 79 Mo. 196; Rhea v. Railroad, 84 Mo. 345. This action is for double damages under old section 1105, now 3145, of Revised States 1909, which is a penal statute and must be strictly construed, and pleadings thereunder must show that every exception therein has been negatived. Jones v. Railroad, 52 Mo.App. 381; Russell v. Railroad, 83 Mo. 507; Wood v. Tel. Co., 59 Mo.App. 236; Manz v. Railroad, 87 Mo. 278.
R. H. Musser for respondent.
The petition sufficiently charges that the lands complained were inclosed lands and that appellant had fenced same, and that it failed in its duty, as required by law, to keep and maintain same so as to properly turn stock, as is required by section 3145, Revised Statutes 1909. Marion v. Railroad, 127 Mo.App. 131; Summer v. Railroad, 29 Mo.App. 41; Duncan v. Railroad, 91 Mo.App. 67; Chubbuck v. Railroad, 77 Mo. 591; Nance v. Railway, 79 Mo. 196; Cline v. Railroad, 119 Mo.App. 245; Fraysher v. Railroad, 66 Mo.App. 574; Wood v. Railroad, 43 Mo.App. 294; Farrell v. Trust Co., 77 Mo. 475; Baggs v. Railroad, 156 Mo. 389.
This is an action under section 3145, Revised Statutes 1909, to recover double damages for the killing of seventeen head of hogs at a point on defendant's railroad where the statute required the maintenance of lawful fences. Defendant demurred to the petition on the ground that it fails to state a cause of action but the demurrer was overruled and defendant filed an answer in the nature of a general traverse. The trial resulted in a verdict for plaintiff for one hundred and sixty dollars and on motion of plaintiff the court rendered judgment for double that amount. Defendant appealed.
Defendant insists that the petition does not state a cause of action. By answering to the merits the demurrer was waived and if the petition liberally construed will support a verdict, we must hold it sufficient however inartificial it may be. The petition alleges "That on or about the day of May, 1910, and for a long time prior thereto, the defendant failed to maintain and keep its said fence along its said right of way, along the premises of this plaintiff, being along the west side of its said railway track, and for a space of more than two hundred yards north of the cattle guards on the north line of the city of Plattsburg, Missouri, in repair, and failed and neglected and refused to keep and maintain the same in the condition required by law, and failed, neglected and refused to keep and maintain said fence so as to prevent stock from entering upon its said right of way along said premises, but permitted the same to remain out of repair and in the condition aforesaid for a long space of time, and defendant, its servants and agents, had knowledge of or could have known by reasonable caution of the conditions herein set forth in ample time to have repaired said fence and placed same in the condition required by law prior to the killing and injury of the stock of plaintiff herein complained of, but defendant, its servants and agents, failed, neglected and refused in anywise to remedy the defects of its said fence along said right of way or to take any precaution against injuring plaintiff's said stock.
Plaintiff further states that on or about the 6th day of June, 1910, by reason of the conditions aforesaid, seventeen head of hogs of this plaintiff, then in the premises aforesaid and along the right of way of said defendant's railway, entered upon the railway track of the defendant, at a point along its said right of way, and at a point where defendant was and is required to fence and maintain a lawful fence, about 150 feet north of the cattle-guards of said railway, located on the northwest line of the corporate limits of the city of Plattsburg, Missouri, and without the corporate limits of any incorporated city, town or village, and were at said time run upon and struck by one of the defendant's locomotives and trains, whereby fifteen thereof were...
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