140 Mo. App. 33 | Mo. Ct. App. | 1910
This action was instituted in the circuit court of Randolph county to recover double damages for the killing of plaintiff’s cow by one of defendant’s engines. The case is founded on section 1105, Revised Statutes 1899, which requires railway companies to erect and maintain fences and cattle-guards. The trial court sustained a demurrer to the petition and plaintiff appealed in due course.
The material parts of the petition are as follows:
“That plaintiff was on the 24th day of March, 1908, the owner of a certain animal, of the value of $75.00, to-wit: A four year old short horn milch cow; that on*36 said 24th of March, 1908, said animal went upon the said railroad of defendant at a point about five miles east of M'oberly in Randolph county, Misouri, and was while upon said railroad struck by the locomotive and cars, then and there being run and operated upon defendant’s said line of railroad, and killed; that said animal went upon -said railroad not at the crossing of any public highway or other road and not within the limits of any incorporated town or city, but at a point where said railroad passed through, along and adjoining inclosed and cultivated fields; that at the point where said animal went on said railroad defendant on and before said date failed and neglected to erect and maintain lawful fences on the sides of its said railroad and to construct and maintain cattle-guards as required by law, and that the injury, aforesaid, was occasioned by defendant’s said failure to construct and maintain such fences and cattle-guards.”
We are of the opinion that the petition substantially meets the requirements of pleading finder the statute aforesaid. It alleges the place where the animal went upon the defendant’s railroad track and where it was killed by defendant’s train. It then alleges that the place where the animal went upon the track was not at a highway crossing and not within the limits of anj town or city, but at a point where the track passed through, along and adjoining inclosed and cultivated fields. That at that point defendant had failed to erect lawful fences and cattle-guards and that the killing was occasioned by such failure. The allegations follow, with appropriate reference to the case, the language of the statute, and this is permissible. [Summers v. Railway, 29 Mo. App. 41; Mayfield v. Railway, 91 Mo. 298; Ringo v. Railway, 91 Mo. 667.]
We have considered the argument of defendant and authorities cited in support of the demurrer, but do not consider that they sustain the judgment, and it is accordingly reversed and the cause remanded.
