Jackson v. St. Louis, Iron Mountain & Southern Railway Co.
80 Mo. 147
Mo.
1883
Check Treatment
Hough, C. J.

1. review able bb-B0KS. Nо exception to the action of the court in overruling tlie motion for a new triаl was saved in the of exceptions, and we are, therefore, limited to an examination of alleged errors in the record proper. Wilson v. Haxby, 76 Mo. 345; State ex rel. Estes v. Gaither, 77 Mo. 304.

2. bailboads: kill-lug live stock :suffi-eiencyoicomplaint

The only question arising upоn the record proper is as to the sufficiency, after verdict, of the following statement: “Plaintiff states defendant is a corporation _ . . „ , h under the laws ot the btate оf Missouri; that on the 20th day of March, 1880, in Poplar Bluff township in Butler county and state aforesаid, and where its said railroad was not fenced, and where there was no crossing on said railroad, ‍‌‌​‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌​​​‌​‌‌​‌‌​​​​‌​​​‌‌​​​‌​​‍the defendant, by its agents and servants, while running its locomotive and train of cars on its said railroad, did then and there run over one mare, the property of plаintiff, and of the value of $60, and thereby killed her; that defendant had failed and neglectеd to erect and maintain good or sufficient fences on the sides of its said railroаd, where said mare got on the track and was *149killed; tbat by reason of the killing of said marе as aforesaid, and by virtue of the 809th section of the Revised Statutes of the State of Missouri, judgment is prayed for $120, being double the value of said mare killed as aforesaid, together with costs.”

In the case of Sloan v. Missouri Pacific R’y Co., 74 Mo. 47, the statement was held insufficient because it contained no avеrment that the injury complained of was occasioned by the failure of the defendant to erect and maintain ‍‌‌​‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌​​​‌​‌‌​‌‌​​​​‌​​​‌‌​​​‌​​‍fences as required by law, nor any equivalent avermеnt nor any averment from which it might be inferred that the injury was occasioned by such failure. In Brown v. H. St. Jo. R. R. Co„ 75 Mo. 427, the statement alleged that: “ The killing of the animal was done in the county of Clinton, Lafayеtte township and. State of Missouri; that defendant’s fence was down and in such condition аs to allow animals to come and go inside of the inclosure at pleasure, сontrary to the statutes of Missouri, and by reason of such negligence of defendant, and without any fault of plaintiffj the said engine did strike and kill plaintiff’s steer, for which he claims double damages,” etc. This statement was held to be sufficient after verdict on the authority of Edwards v. Kansas City, St. Jo. & C. B. R. R. Co., 74 Mo. 117, and the decision in this case was affirmed in Nance v. St. Louis, 1. M. & S. R’y Co., 79 Mo. 196. In Belcher v. Missouri Pacific R’y Co. 75 Mo. 515, the sufficiency of the following statement was questioned in this court: “ That plaintiff was the оwner of one cow, of the value of $40, and of two sheep, of the value of $1, which cow and sheep, without fault of plaintiff j strayed upon the track of said railroаd on or near a farm crossing at a point on the line of ‍‌‌​‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌​​​‌​‌‌​‌‌​​​​‌​​​‌‌​​​‌​​‍said railroad in Big Creek tоwnships Cass county, where said road was not fenced, and where the crossing and cattle-guards were not made as the law requires; that defendant, by its agents and servants, so сarelessly and negligently ran and managed its said cars and locomotive that they rаn against and over said cow *150and sheep,” etc. This statement was also held sufficient on the authority of Edwards v. Railroad Co., supra.

The statement now under consideration is in all respects a fuller and better statement than either of the two above set forth and held by this conit to be sufficient, ‍‌‌​‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌​​​‌​‌‌​‌‌​​​​‌​​​‌‌​​​‌​​‍and unless we depart [from the rule applied in those cases we cannot hold the statement before us to be insufficient. We, therefore, hold it to be goоd.

The statement that the defendant failed and neglected to erect or maintain good or sufficient fences where the mare got on the track, and the reference to section 809 of the Revised Statutes, imply that it was the duty of the defendant to erect and maintain fences at said place, and that the mare got on the trаck in consequence of such failure.

3. pleading legal CONCLUSIONS

Conceding that the implication stated is а conclusion of law, yet an issue raised on the statement of a legal con-Glusion ‍‌‌​‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌​​​‌​‌‌​‌‌​​​​‌​​​‌‌​​​‌​​‍wMcl1 Presents the real point in controversy will be regarded as sufficient after verdict. Bliss on Code Plead., § 334.

In Asher v. St. Louis, I. M. & S. R’y Co., 79 Mo. 432, the statement was held to' be defective because it failed to allege that the animals got upon defendant’s road at a place whеre the company was by law required to fence, and there was no allegation, as in the present case, from which that fact could be inferred. In Bates v. St. Louis, I. M. & S. R’y Co., 74 Mo. 60, the statement was substantially like that now before us, but the court did not specifically pass upon the clause of the statement on which our judgment in this case is based.

The judgment of the circuit court will be affirmed.

All the judges concur.