26 Mo. App. 377 | Mo. Ct. App. | 1887
This was an action under section 809, Revised Statutes, begun before a justice of the peace, for the recovery of double damages for the killing, by •defendant, of plaintiff’s ,mare.
It was necessary for the statement or petition to ■allege, by direct averment or necessary implication, that
The material averments of the statement in this case are as follows: “And on or about said day, said mare came upon the main railroad track of said defendant, at a point where it was unfenced on both sides of said track, and a,t a point where said defendant had, for a long time, failed and neglected to keep or maintain any fences on either side of said track, and at a point not near any crossing of any public road or highway. And the said mare went upon said track by reason of the neglect of the said defendant to fence said road at said point, which was not within the limits of any incorporated town or city, and at said point in Rush township, in said county, the said defendant, while running a locomotive and train of cars on said track, at said point, .ran said locomotive and train at and against said mare, and killed and rendered worthless the same. ” The statement contains no direct averment that the plaintiff’s mare got upon the defendant’s railroad track at a point where the defendant was required, by law,' to erect and maintain fences. The question is, is such allegation made by the statement by necessary implication ?
The statement seeks to make such allegation, by ' implication, by averring certain exceptions. Thus it is averred that the point on the defendant’s railroad track, at which the mare went on the track, was not within the
' The position taken by the defendant’s counsel, that, under the facts of this case, the plaintiff had no right to recover in this action, under section 809, Revised Statutes, is not tenable. This case, as to this point, is covered by Bean v. Railroad (20 Mo. App. 642). As we have said, railroad companies are required to erect and maintain fences everywhere outside of towns and cities, except at public crossings and depot grounds. And at neither a public crossing nor a depot is a railroad company permitted to erect fences. Clarkson v. Railroad, 84 Mo. 585. Hence, outside of towns and cities^
For the insufficiency of the statement, the judgment is reversed and cause remanded.