137 Mo. App. 293 | Mo. Ct. App. | 1909
— This is a suit for damages alleged to have accrued to the plaintiffs by reason of animals escaping from the unfenced railroad right of way of defendant into the plaintiffs’ fields, and destroying their crops. Plaintiffs recovered and the defendant appealed.
The first point for consideration relates to the sufficiency of the statement of the cause of action. The cause originated before a justice of the peace and the petition is somewhat informal, as is usual in those courts. Notwithstanding the informalities, we are of opinion that it contains averments of material facts sufficient to constitute a cause of action under the statute (sec. 1105, R. S. 1899, sec. 1105, Mo. Ann. St. 1906). No demurrer was interposed, and the only question with which we are concerned is the sufficiency of the cause of action stated, after verdict. After averring the defendant is a corporation operating a railroad, the petition alleges substantially that at the time of the grievances complained of, plaintiffs occupied a farm in Randolph township, in St. Francois county, through which farm defendant’s railroad passed, and at the time, plaintiffs had on said farm growing and standing crops of corn, wheat, hay, etc. That defendant, although operating- its railroad through their farm, neglected to erect and maintain lawful fences on the sides of its said railroad where the same ran through plaintiffs’ fields on said farm in Randolph township aforesaid, and that by reason of the defendant’s failure to erect and maintain fences and cattle-guards along and across its said railroad, as required by the statute, horses, mules, cattle and other animals came into and upon the fields and inclosed lands of the plaintiffs and destroyed various and sundry crops there growing and standing. The crops alleged to have been destroyed were wheat and corn in the fields, and hay and grain in the stack. The point made against the sufficiency of the statement
The evidence tended to prove that plaintiff occupied a farm in Randolph township, St. Francois county. The farm consisted of cultivated fields, on which plaintiffs had growing crops of corn, wheat, hay, etc. They also had hay and grain in the stack thereon, not far distant from the railroad right of way. It appears the railroad passed through the farm for about a quarter of a mile. The railroad had recently been constructed and was wholly unfenced. Just who or what company had constructed the road or owned the same, does not appear in the record; nor does it appear how the defendant came into possession; whether by lease, purchase, or otherwise. It does conclusively appear, however, that the defendant company took possession of the road on August 15th and operated it from that day thereafter; that it neglected to erect fences on either side of the road where the same passed through the plaintiffs’ cultivated fields, and had also neglected for several months to install a cattle-guard at the public road crossing, adjoining plaintiffs’ farm. As defendant was operating the road, liability attached to it for failure to fence by the express words of the statute. It was immaterial who owned the
The appeal is wholly devoid of merit and the judgment should be affirmed. It is so ordered.