75 Mo. 136 | Mo. | 1881
It is not contended by counsel for defendant, that the judgment of the justice was not rightfully affirmed, so far as concerns the mere practice relating to appeals from justices’ courts.
We are to look, then, to the sufficiency of the statement filed with the justice. We are not prepared to say that it absolutely fails to state a cause of' action, either at common law, or under the 5th section of the Damage Act. It is true, there is a prayer for double damages, but the 43rd section is nowhere mentioned in the statement, and the prayer should not be permitted to overthrow a statement otherwise sufficient. It is necessary, to a recovery under the 5th section aforesaid, that the point at which the accident occurs should not be “ inclosed by a lawful fence,” nor be “ on the crossing of any public highway.” An allegation of this kind appears in the statement, and one also charging gross carelessness on the part of defendant’s servants in running the train, resulting in the killing of plaintiff’s mare. We think, therefore, the statement a good one, at least’ so far as stating a cause of action is concerned, and it is too late, after a judgment of affirmance occurs in the circuit’court, to object, because of mere formal defects. Holding these views, we affirm the judgment of the circuit court.
