49 Mo. App. 520 | Mo. Ct. App. | 1892
This action was brought on the ■sixteenth of October, 1891, to recover damages for killing certain horses belonging to the plaintiff. The court sustained a demurrer to the petition; the plaintiff elected to stand on his petition; thereupon the court rendered judgment for the defendant, to reverse which the plaintiff prosecutes this appeal. The petition was as follows:
“Plaintiff, I. WjHill, complaining of the defendant, the Missouri Pacific Eailway Company, states that said defendant is, and at all times hereinafter mentioned was, a railroad corporation duly organized and existing under the laws of the state of Missouri by the corporate name of the Missouri Pacific Eailway Company.
*522 “That, on the eighth day of November, 1889, and for many years theretofore, said defendant owned and operated a railroad in the state of Missouri, known as the Missouri Pacific railroad, in part located within the corporate limits of the city of Pacific, in the county of Eranklin and state of'Missouri, and thence extending westward through the county of Eranklin; and the said railroad, where the same crosses the west boundary line-of said city, was inclosed by fences along and on the-right of way of defendant, on which right of way said railroad was located; and, for a considerable distance from said boundary line into and within the corporate-limits of said city, said railroad was, in like manner, inclosed by fences on and along said right of way.
“That at the place where, in said town, the said road was so fenced during all said time the lands adjoining the said railroad and the right of way thereof, on the south side of said right of way, were used for farming purposes, through which on the south side of said railroad a narrow lane ran up to the line of the right of way of said railroad; and, at the point where said line terminated on the south side of said right of way, a gate, forming a portion of said railroad fence, opened into and upon the right of way of said railroad, through which, when open, horses and other domestic animals: could pass from said lane into and upon said railroad and right of way, and being on said railroad and right-of way, could not escape therefrom, except by returning through said gate or passing over defendant’s said, fences and cattle-guards connected therewith.
“ That defendant was not required by law to maintain said fences or gate at said point, but maintained the same of its own volition; and so maintaining the-same it was the duty of defendant to keep said fences and gate in such condition and so connected with, cattle-guards as to prevent horses and other domestic-*523 animals from getting on said road between, said fences. That, by reason of the maintenance of said fences at said place, horses and other domestic animals, being on said railroad between said fences, had less chance to escape from being injured by defendant’s engines and trains than they would have had if, being on said railroad at said point, said fences had not existed to interfere with their escape from said railroad and right of way onto said adjoining lands; and, therefore, it was the duty of defendant, while it maintained said fences and gate, to use more than ordinary care to keep the same in such condition as to prevent' horses and other domestic animals from getting on said railroad through said gate and fences; yet said defendant, on said day and for many years theretofore, maintained said fences and said gate in said fence on. said south side of said railroad in a careless and negligent manner, and repeatedly suffered said gate to stand open and unfastened, and to be without suitable latches and- fastenings to hold the same closed. That during all said time said gate had thereon insufficient fastenings, that it would open by natural causes independent of being opened by any person, and by reason of its proximity to said city said gate was peculiarly subject to being left qpen by persons passing either from said adjoining lands to said railroad, or from said railroad to said adjoining lands, through said gate; and during all of said time said gate was often left open and unfastened, so that horses and other domestic animals could, by passing through the same, get on said railroad; and on said day and during all said time defendant had notice of said facts.
“That the maintenance of said gate at said place, as the same was so maintained by defendant, was negligence on the part of defendant, liable to occasion' injuries of the character of the injury hereinafter complained of.
*524 “That, on the eighth day of November, 1889, by reason of said negligence of defendant, three horses, the property of plaintiff and of the value of $500, then lawfully running at large on the south side off said railroad, passed through said lane, and, the said gate not then being securely fastened, passed through said gate and so got upon said railroad at a point within the corporate limits of said city; and, having so gotten upon said railroad and being on said railroad between said fences, were frightened by an engine and train of cars then and there being run and operated on said railroad, and ran before said engine and train of cars along said railroad until they were caught, struck and killed on said railroad, in said county of Franklin, by defendant, by its said engine and train of cars, on said eighth day of November, 1889.
“And plaintiff avers that defendant, by its agents and employes, then and there running said engine and train of cars, by the exercise of reasonable care could have seen the said horses and have stopped the said engine and train of cars before overtaking or striking any of said horses, but did carelessly and negligently then and there run said engine and train of cars upon said horses, and kill the same.
“And defendant having so negligently maintained said gate in said fence, in manner and form as aforesaid, for many years and until the injury aforesaid was done to plaintiff, did within a few days thereafter close up and stop said gate by making a permanent fence along and across the same, as before the killing of plaintiff’s said horses it might lawfully have done, and ever since that time defendant has maintained said fence across said gate. And plaintiff avers that, by killing his said horses in manner and form as aforesaid, defendant has damaged plaintiff in the sum of $500, for which said sum with costs plaintiff asks judgment.”
“First. Said petition does not state facts sufficient to constitute a cause of action.
“Second. Said petition alleges two separate and distinct causes of action, both united and intermingled in the same count, the first, for negligently building and failing properly to maintain a certain fence along defendant’s railroad, whereby plaintiff’s horses were enabled to get upon said right of way, and were killed by defendant’s engine and cars, and the second being for negligence on the part of the agents and servants of defendant in failing to see said horses and negligently running its engine and cars upon said horses, the first cause of action definitely alleging the negligence of the defendant itself, and the second alleging the negligence of the servants of the defendant.”
In support of this demurrer the position of the defendant is twofold: First. That the petition does not state an action at common law, but states an action under section 4428, of the Revised Statutes, which is the statute formerly known as section 5 of the damage act, or “ the single damage act;” and, consequently, that on its face it is barred by the statute of limitations of one year, contained in section 4429 of the damage act, and that this may be reached by demurrer. Second. That it involves a misjoinder of two distinct causes of action.
I. The question whether the petition states only a cause of action under section 4428 of the Revised Statutes involves two inquiries: First. Whether that section is an exclusive remedy, and repeals any remedy under the common law, in the situation to which it applies, or whether it is cumulative merely, leaving also an action for damages under the rules of evidence existing at common law in the same situation. Second. If the statute is cumulative, whether the petition states
As to the first of these propositions it is settled in this state that the statute- is cumulative, and does not displace the common law in the situation to which it applies; so that, under a general allegation of negligence, the plaintiff may succeed either by proving negligence at common law, or by proving the constructive negligence of the statute in failing to erect and maintain fences in the given situation. Thus, in Calvert v. Railroad, 34 Mo. 243, the petition alleged, in general terms, that the defendants, “by their agents, servants, locomotives and railroad cars, negligently and carelessly ran over, maimed and killed certain cattle, belonging to plaintiff, to-wit, one cow of the value of $25, and one heifer of the value of $10, for which he asks judgment.” It was objected by the defendant on appeal that this petition stated no cause of action; but the supreme court, speaking through Dbyden, J., said: “The petition in [this case contains a clear and concise statement of the facts, imposing a common-law liability upon the appellant for the alleged negligence of its agents. But this is not enough for the appellant, who insists that the petition is bad because it does not likewise aver the facts necessary to create a statutory liability, and for this cause moves in arrest of judgment. It is unjust to the public that the time of the courts should be occupied in the consideration of a question so utterly devoid of merit.” .On a subsequent trial, under the same petition, it was shown by evidence that the injury occurred at a place which was not a crossing of a public highway, and which was not inclosed by a lawful fence. The jury, under the instructions of the court, having found for the plaintiff, the defendant again appealed on the ground that the petition showed merely a common-law liability, and
In Minter v. Railroad, 82 Mo. 128, it was held that a general statement filed before a justice of the peace, such as the following: “Hannibal and St. Joseph Railroad Company to John S. Minter, debtor, for killing three hogs,” etc., might be amended in the circuit court by substituting a statement, in the nature of a petition under section 5 of the damage act for failure of the railroad company to fence, etc., without introducing a new cause of action.
In Boone v. Railroad, 20 Mo. App. 232, the action was commenced before a justice of the peace, and the plaintiff’s statement charged that “the defendant, by its agents, and servants, carelessly and negligently, with its engine and cars, ran over and killed the plaintiff’s cow,” etc. Hnder this statement, the plaintiff, against the objection of the defendant, gave evidence tending to show that the point in question was where the defendant was required by law to erect and maintain a fence on the sides of its road, and that it had neglected to do so, On appeal it was held by the Kansas City Court of Appeals that this was not error. The court, following the case last previously cited, held in substance that, under a statement setting up a case of negligence at common law, the plaintiff could recover under evidence of the statutory constructive negligence, which consisted of failing to fence under section 5 of the damage act. There are analogous decisions of the supreme court, to the effect that, under a common-law statement or count for negligence in running the defendant’s locomotive and' cars, it is competent to prove any negligence that contributed to produce the injury complained of, including that of the failure to ring the bell or sound the whistle, which is made negligence by
The next question is, whether the petition above set out is, in its proper interpretation, a petition under the statute, or a petition at common law. The statute is as follows: u When any animal or animals shall be killed or injured by the cars, locomotive or other carriages used by any railroad in this state, the owner of such animal or animals may recover the value thereof in an action against the company or corporation running such railroad, without any proof of negligence, unskilfulness or misconduct, on the part of the officers, servants or agents of" such company; but this section shall not apply to any accident occurring on any portion of such road that may be inclosed by a lawful fence, or in the crossing of any public highway.”
The most cursory glance at the petition will show that it was not only not intended to be a petition under the statute, but that it is not such in fact. In order to determine this question it is necessary to consider whether, in order to recover under the petition, the plaintiff must prove the kind of negligence named in statute; that is, the failure on the part of the defendant to erect and maintain a lawful fence, or whether he can
It is argued that the petition fails to state a cause of action, in that it alleges that the defendant, “by its agents and employes then and there running said engine and train of cars, by the exercise of reasonable care could have seen the said horses, and have stopped the said engine and train of cars before overtaking or striking any of said horses, but did carelessly and negligently then and there run. said engine and train of cars on said horses, and killed the same; ” instead of averring that the defendant, by its agents and employes, saw the horses upon the track in time, by the exercise of reasonable care, to have stopped the engine and train of cars so as to avoid killing them. In support of this view of the measure of the defendant’s liability, two decisions are cited of the Kansas City Court of Appeals: Hoffman v. Railroad, 24 Mo. App. 546; Welch v. Railroad, 20 Mo. App. 477. We do not regard these cases as having been well decided. We understand that the supreme court in Kendig v. Railroad, 79 Mo. 207, held precisely the reverse, qualifying and explaining its previous decision in Wallace v. Railroad, 74 Mo. 594. We, also, think that this conclusion is strongly supported by the analogues of the decisions of the supreme court of this state in regard to the killing or injuring
In this state the owner of land is not bound to keep his domestic animals upon his premises or to fence them in, but they are allowed what is called a “free range, ” and he does not become a trespasser from the fact that they stray upon the unfenced lands of another proprietor. Gorman v. Railroad, 26 Mo. 441; Davis v. Railroad, 19 Mo. App. 425; Howenstein v. Railroad, 55 Mo. 33; Busby v. Railroad, 81 Mo. 43; Turner v. Railroad, 78 Mo. 578, 581. Under the law of Missouri trespass
II. We now come to the second branch of this demurrer, which is that the petition involves a misjoinder, in one count, of two different causes of action. We. do not so read the petition. It seems plain to us that the negligent killing of the plaintiff’s horses is the one cause of action alleged therein, and that the act of the .defendant’s servants in allowing the gate to become open whereby the plaintiff’s horses got upon the defendant’s track, into a sort of pocket, so to speak, so that when pursued by an engine they would be restrained by the fences on either side from running off the track, and the further fact that the servants of the defendant, in driving the train which killed them, might have discovered them on the track in time to have prevented the accident, is merely the statement of two preceding acts or circumstances of negligence leading up to the single catastrophe. It is obvious that actual negligence may consist of any number of negligent acts preceding the injury or catastrophe, all of them naturally leading up to it and contributing to it, and it cannot be the law that the pleader, in staging his ground of action, is obliged to select one of these precedent acts of negligence, and rely upon that, when that alone may not be sufficient, but two or more, or all of them collectively, may be sufficient to make out his right of recovery.
Nor is the petition open to the criticism, that it
We are, therefore, of opinion that the learned judge erred in sustaining the demurrer to the petition; and we accordingly reverse the judgment of the circuit court, and remand the cause. But, as our decision is necessarily in conflict with the decisions of the Kansas City Court, of Appeals above quoted (Hoffman v. Railroad, 24 Mo. App. 546, and Welch v. Railroad, 20 Mo. App. 477), the cause must be certified to the supreme court for final determination. It is so ordered.