Miles v. Hannibal & St. Joseph Railroad

31 Mo. 407 | Mo. | 1861

Napton, Judge,

delivered the opinion of the court.

The petition in this case is defective. It is impossible to conjecture on what grsiund the liability of the company is placed. Negligence and wilfulness are charged, and it is also alleged that the road was not fenced and that there were not cattle-guards at the crossings, but where the accident occurred is not stated. The evidence merely showed the killing of a cow by the locomotive. The instructions asked by the defendant were not the law. Negligence and unskilfulness on the part of the company’s agents were not essential to a recovery if the accident happened where there was no fence and where there was no crossing, or where the crossing was not protected by a cattle-guard. How this was does not appear.

Judgment reversed and cause'remanded;

Judge Ewing concurs. Judge Scott absent.