81 Mo. 43 | Mo. | 1883
This action was instituted in a justice’s court, and on appeal tried finally in the circuit court. The statement filed with the justice is as follows :
“ Plaintiff says that defendant is a corporation organized under and by virtue of the laws of the State of Mis
The cause was submitted to the court, sitting as a jury, for trial upon the following agreed statement of facts:
“ 1st. That defendant is a corporation engaged in operating trains of cars, and that the line of said road passes through Carrollton township, in Carroll county, Missouri. 2nd. That the heifer is the property of plaintiff, and of the value of $15. 3rd. That heifer was killed-^— day of October, 1878, by defendant’s engine, etc. 4th. That she was killed in Carrollton township. 5th. That prior to the killing defendant had erected a good and substantial fence between the right of way qf defendant and inclosed field occupied by plaintiff, but that at the time of killing, defendant wholly failed to maintain the fence, separating the right of way of defendant and the inclosed field occupied by plaintiff, in condition to prevent cattle from getting on same. 6th. That said heifer, by reason of such failure, escaped through said fence and got on defendant’s railroad and was there killed. 7th. That the fence belonged to defendant, and the fence inclosing plaintiff’s field wap joined
No instructions were asked or given in the case. The court found for the plaintiff in the sum of $15, and rendered judgment accordingly. The defendant has brought the case here on appeal.
I. The first error assigned for the reversal of the judgment is, that the statement is insufficient to support the judgment. The sufficiency of these statements has been the subject of much discussion in this court. Without re-stating the points of controversy, or reviewing the many cases decided, it may be affirmed that the latest adjudications on this subject have quite clearly established the rules by which it is not difficult to determine the sufficiency of this statement. In Edwards v. Railroad Co., 74 Mo. 122, the court say : “ There is no express allegation that the cow got upon the track in consequence of the failure of the defendant to erect or maintain fences and cattle-guards, as required by the statute ; but we think the averment quoted, if not equivalent to such an allegation, will at least warrant an inference that the cow got upon the track by reason of the failure to fence. The case presented is not one of an entire failure to state a cause of action, * * but the case is one where the cause of action is defectively stated, and such defective statement is good after verdict, evidence having been given in support of it which cured the defect.” And in later cases it has been held substantially, that where enough is averred in the statement from which it may be reasonably inferred that the animal got upon the track in consequence of the failure of the road to fence at that point, this will be sufficient after verdict, when supported by the requisite proof. Nance v. St. Louis, I. M. & S. R’y Co., 79 Mo. 196; Jackson v. St. Louis, I. M. & S. R’y Co., 80 Mo. 147. The allegations of the statement in
II. It is insisted by appellant, that the evidence did not go far enough to fix a liability on defendant, because it did not affirmatively appear, that a sufficient length of time had elapsed, after the fence got out of repair, to allow defendant an opportunity to make the necessary repair. This objection is not well taken. If the fence was down, and not a lawful fence at the time the animal went upon the track through it, the inference would be, that defendant, upon whom devolved the duty, was not maintaining a lawful fence. Aside from this, the agreed statement recites “that at the time of the killing, defendant wholly failed to maintain the fence * * in condition to prevent cattle from getting on same.” If, as a matter of fact, sufficient time had not elapsed, after the fence got out of repair, to allow the defendant to restore it, why did it not include that statement when making an agreeed statement of what the real facts were ? It was matter of defense for it to invoke.
III. The final contention of appellant is, that the ffince in question was a division fence between the parties;
We are referred by counsel to the following adjudications : Jackson v. Rutland R. R. Co., 25 Vt. 150, and R. R. Co. v. Miami Co. Infirmary, 32 Ohio St. 566. In the Vermont case, it is to be observed, that the omission, on the part of the railroad to fence at the given point, was by consent of the adjacent land proprietor. Judge Eedfield held that, under the charter of the railroad, as well as the general law of the State, the duty imposed upon the railroad to fence, was only toward the owner of the adjoining land; and, therefore, it and the adjacent owner might stipulate “ to let the land remain unfenced, or to assume the burden themselves, and no other land owner could complain upon the mere ground of the increased liability to injury of his cattle.”
The basis of this declaration of law is, that, in that state, it is not now considered that the owners of cattle have any right to depasture them in the highway. The owner of cattle is here left, since the revised statutes of 1839, as at common law. He is bound to keep his cattle at home.” Such, however, has never been the law in Missouri. Gorman, v. P. R. R. Co.. 26 Mo. 441; Bradford v. Floyd,
The Ohio case, likewise, rests upon peculiar provisions of the local laws of that state. As appears from the decision, all railroad fences constructed by the company become, by operation of the statute, partition fences. When the railroad track passes through inclosed fields, “ the proprietor thereof is required to construct one-half the fences necessary to partition such inclosed lands from the railroad track.” And “ they shall be kept in repair, in all respects, as partition fences are now by law required to be kept in repair.” But, both by the charter of defendant and the general law of this State, the defendant company is “ required to erect and maintain good and substantial fences on the sides of said railroad, or its branches, where the same passes through, along or adjoining inclosed or cultivated fields or uninelosed lands.” Laws 1868, § 3, p. 113; R. S., § 809. This is a statutory obligation, imposed on the railroad company, especially toward the adjacent land owner; and without. more, no duty at law rested on the plaintiff to keep up such fence. Such adjacent proprietor and the railroad company might agree, as between themselves, to dispense with s.ueh fence, or that the adjoining proprietor should build and maintain it, or to maintain it in common. In such oases the land owner could not maintain an action against the company for any injury resulting from the absence, or bad condition of such fence. This was so held in Ells v. P. P. R., 48 Mo. 231. Was there any agreement or understanding between the plaintiff and defendant, which would exempt the defendant from its statutory obligation ? The only evidence touching this issue, is the following recital in the agreed statement: “ That the fence belonged to defendant, and the fence inclosing plaintiff’s field was joined
It follows that the judgment of the circuit court should be affirmed.