110 Mo. App. 497 | Mo. Ct. App. | 1905
— This is an action for the value of a mare alleged to have been killed by an engine of the defendant company. The cause of action originated in the State of Illinois and is founded on a statute of that State giving single damages to the owners of stock killed by an engine or a train of a railway company at any point along the line where the right of way is not fenced as required by law. It is said there was no evidence to show that the mare was struck by a train, which must have been shown to bring the case within the Illinois statute. The mare was found lying on the right of way near the track, with her head badly bruised and one eye knocked out of its socket. This and other facts in proof were sufficient in our judgment, to support a finding by the jury that the mare was killed by an engine or train.
It was said that the statute was a penal one and not enforceable outside the State of its enactment. Decisions of the Supreme Court of Illinois are cited on the proposition. The statute in question allows Single damages by way of compensation. The decisions cited refer to a double damage statute. [Railway v. Warrington, 92 Ill. 157; Railway Co. v. Russell, 115 Ill. 52.]
The petition avers that the place where the animal went on the railway right of way and where it was killed, was not a point where the railroad was enclosed by a lawful fence. We .will quote the language used:
“That at the place at which plaintiff’s said animal went upon the said railroad; to-wit, near said Quincy Junction, in said Pike county, Illinois, and where it was injured and killed by the engine and ears on said railroad, was not at a point where the railroad was enclosed by a lawful fenc'e, not at the crossing of any public road or highway, nor within an incorporated city, town or village; that said animal was injured and killed at a place where the defendant*501 might lawfully have erected and maintained fences on the sides of said railroad, and constructed cattle-guards sufficient to prevent animals from getting on the railroad, but defendant had failed and neglected to construct and maintain fences, gates and cattle-guards at said place, as required by said statute of the State of Illinois.”
Testimony was elicited at the trial which tended to show the mare went on the track through an open gate at a place where the right of way was lawfully fenced, instead of where no fence had been constructed and maintained. This evidence was objected to because the petition did not allege the gate was left open. On this evidence the jury was instructed, in substance, that the statute required the defendant to maintain fences with gates therein at farm crossings and that the gates were part of the fences; that it was part of the statutory duty of the railroad company to maintain the gates in repair and keep them closed so as to protect stock from getting on the track through them as well as at other places, and if the jury believed the horse got on the track through the gate and the gate was left standing open so long before the accident that the defendant knew it was open, or by the exercise of ordinary care could have discovered it was in time to close it before the mare went through, and that by reason of the defendant’s neglect to close it, the mare got on the track and was struck and killed by an engine, the defendant was liable. That instruction is assailed as erroneous because it allowed a verdict for the plaintiff outside the allegations of the petition. It is said the petition counts, not on the negligence of the defendant in leaving the gate open where the right of way was enclosed lawfully, through which open gate the mare passed on the right of way, but on a failure to construct and maintain a lawful fence where the mare went on track. This point has merit. Plaintiff’s petition not only contains no averment of facts
The judgment is reversed and the cause remanded.