| Mo. Ct. App. | Jan 13, 1891
Lead Opinion
This is an action to recover double damages for the killing of plaintiff’s horses by-defendant’s locomotive. The petition as originally framed contained five counts, but the third count was dismissed before trial. The remaining counts claimed damages on the following grounds : First. a A failure to erect fences and cattle-guards along defendant’s road where it runs through inclosed fields. Second. A similar failure where it runs through uninclosed lands. Fourth. .A failure to maintain a sufficient crossing-over a public road. The fifth count purports to state a cause of action for single damages under section 2124 of' the statute,- but is fatally defective in its averments in not showing that the horses were killed at a place where the railroad company may fence. The cause was tried by a jury resulting in a judgment for-plaintiff, and the complaints are that the court erred in not compelling the plaintiff to elect before trial on which count-of his petition he would proceed ; in admitting illegal evidence ; and in misdirecting the jury in its instructions.
Actions of this character originate, as a rule, before justices of the peace, where no formality of pleading is required. The only restriction to joining several causes of action in proceedings before justices is, that causes of action founded in contract should not be joined with those founded in tort. R. S. 1889, sec. 6137. In cases originating in courts of record the rule is different. The-statute expressly'provides that causes of-action can not be united in the same petition, unless they belong to one and the same class of the seven classes enumerated in section 2040, Revised Statutes, 1889. When causes of. action belonging to different classes have been improperly united, the defendant may demur under section 2043, Revised Statutes, 1889.
' The third of these classes comprises injuries with or without force to persons or property, or either. This, of
It results from the above, as the correct rule of practice, that where several counts in the same petition are inconsistent, so that the proof of one necessarily disproves the other, the court .should, if requested by the defendants so to do, and may, of its own motion, compel the plaintiff at any time to elect on which one of the inconsistent counts he will proceed to trial. If, on the other hand, there is no necessary inconsistency between the counts, but they are for the same cause of action, so that only one recovery can be had, it would seem to be the better practice that the court should, if requested so to do, and may of its own motion, upon the close of plaintiff’s evidence, compel him to elect on which of the several counts he will take the verdict of the jury, as this practice alone will enable appellate courts to review intelligently the rulings of the trial courts upon evidence and instructions.. We are not
In the case at bar there is no such inconsistency as would have entitled the defendant to compel the plaintiff to elect. A railroad may run between inclosed fields and uninclosed lands at the same point, since fields may be inclosed on one side of it, and uninclosed on the other! It could.also, at the point where the stock came upon the track, run along a wagon road, and a liability might attach to the railroad company for not fencing its side towards the road, or for not maintaining the crossing of that road over its tracks. Either of these failures may have caused the injury complained of, and the plaintiff had a right to proceed for either or all together, although he was limited to a single recovery. The first- error assigned is, therefore, not well assigned.
In order to pass intelligently on the other errors assigned, we annex hereto a plat, which was used by plaintiff ’ s witnesses in giving their testimony, and which is essential to a clear understanding of the testimony and the rulings of the court thereon.
The plaintiff is a tenant on the Larue farm, which is east, of the Nunn land. For twenty years or more there was a traveled road running along the western fence of the Larue farm. In 1867, Nunn built a fence on the eastern side of his land and north of the present railroad, leaving this road in a lane about twenty-five • feet wide. The railroad was constructed in 1871, and all the testimony concedes that this road was then in existence ; that it was traveled by all who saw fit to use it, and that it crossed the railroad at point A on the accompanying plat, and that it was not closed by gates anywhere. At what exact date Nunn’s land south of the railroad was fenced does not accurately appear, but it would seem it was fenced some eight or ten years ago, so as to leave the road south of the railroad also
■ This being the uncontroverted evidence, it- is clear that the court erred in permitting the plaintiff to give evidence, against the defendant’s objection, that the road -was never worked by the road overseer. The defendant claimed that, if this road was traveled and used by the public, it was not necessary that it should be worked under the direction of the county court to constitute it a public road, but the court declared that all these facts -were necessary, to constitute it a highway. It was' decided in Walton v. Railroad, 67 Mo. 56, that a private road is a highway, and a public highway, within the meaning of what is now section 2124 of the revision of 1889, and that the company cannot lawfully close it by its fences. This road was found there by the company when it built its railroad in 1871, and the uncontroverted evidence concedes that it had been traveled by the public for a period of twenty years
For the same reason the court erred in instructing the jury “that the lane crossing the railroad at the point, where said mares and colt are alleged to have been killed, was inclosed land within the meaning of the statute.”'
’ This instruction not only told the jury, as a matter of law, that such lane was no road, but also told them that it was inclosed land, we presume on the theory that the ends of the lane were closed by gates. The court could assume neither of these facts, even if there would have been evidence to support them, and as above seen there was no evidence to support them. The testimony fails to show any dereliction of the railroad company under the fencing laws, and, if any recovery is to be had in this case, it must be based on the negligence of the company in some other respect.
The judgment is reversed and the cause remanded. All the judges concurring, it is so ordered.
Rehearing
ON MOTION ROE EEHEARING.
The plaintiff’s counsel presses with great earnestness the proposition that the road in question was not a public road de jure, and, hence, the company was bound to fence it. He also calls our attention to the fact that the private road referred to in Walton v. Railroad, 67 Mo. 56" court="Mo." date_filed="1877-10-15" href="https://app.midpage.ai/document/walton-v-st-louis-iron-mountain--southern-rwy-co-8005856?utm_source=webapp" opinion_id="8005856">67 Mo. 56, was by statute a road subject to public use, and, hence, that case is no authority. The conclusive answer to this argument is found in Luckie v. Railroad, 76 Mo. 639" court="Mo." date_filed="1882-10-15" href="https://app.midpage.ai/document/luckie-v-chicago--alton-railroad-8007245?utm_source=webapp" opinion_id="8007245">76 Mo. 639, and Brown v. Railroad, 20 Mo. App. 427" court="Mo. Ct. App." date_filed="1886-01-25" href="https://app.midpage.ai/document/brown-v-kansas-city-st-joseph--council-bluffs-railway-co-6615011?utm_source=webapp" opinion_id="6615011">20 Mo. App. 427, which expressly decides that railroad companies are not required to fence across highways de facto.
All the judges concurring, the motion for rehearing is overruled.