28 Mo. App. 372 | Mo. Ct. App. | 1887
I. The first objection of appellant is, that the statement does not contain facts sufficient to constitute a cause of action. The action was manifestly brought under section 2124, Revised Statutes, authorizing the recovery of damages, without any proof of negligence, where the injury occurs for killing such stock at a‘point on the railroad where the company may inclose the road with a lawful fence. Under this section
In Thomas v. Railroad (82 Mo. 538) it is said: “The statement is sufficient when it states facts which necessarily imply that the failure to fence caused the injury complained of.” So, in Belcher v. Railroad (75 Mo. 515-516), Norton, J., said: “ We have held that if, in a statement filed before a justice of the peace, the nature of the transaction and the particulars of the demand appear so as to apprise the opposite party what he is called upon to defend, and specific enough to bar
We think the statement in this case sufficient after verdict. Both parties at the trial seem to have regarded the fact at issue as to the existence of a fence at the point of the injury. The witness, Allen, testified, without objection, “there are no streets and alleys, intersecting the ground, so that if defendant’s track and ‘ Y’ were fenced, no streets, alleys, or lanes of the city of Clinton, or any additions to the same, would be obstructed by the same. The tracks, including the ‘ Y,v could be fenced without interfering with the defendant’s business or with the public. It is not fenced, however.” The defendant raised no objection at the trial, neither by objection to the evidence, nor in the motion for new trial. There was no motion in arrest filed. There was sufficient averred, we think, to negative the idea that there was any fence along the sides of the railroad track, especially so after the proofs and the verdict.
II. Complaint is also made of the instruction given on behalf of plaintiff, which told the jury that if the road was not fenced at such point, it did not devolve upon the plaintiff to prove actual negligence in running and managing the cars. This is what the statute says ; and so has the Supreme Court repeatedly held. Edwards v. Railroad, 66 Mo. 571; Radcliff v. Railroad., 90 Mo. 133-134.
III. Appellant complains that the instruction given for plaintiff is in conflict with one given on defendant’s behalf, in that the latter only authorized the plaintiff to recover in the event the injury was negligently committed by defendant) or that defendant’s servants saw
IY. It is finally assigned for error that, at the time of this injury, there was an ordinance of the city of Clinton in force, put in evidence by defendant, prohibiting stock from running at large within the corporate limits of the city, and that plaintiff had, in violation of this ordinance, turned his said cow at large inside of the corporate limits. The difficulty in defendant’s way is, that the evidence fails to show that plaintiff turned his cow loose inside of the corporate limits of Clinton.' On the contrary, the evidence rather tends to show that plaintiff resided outside of the corporation, and that he, so far from turning his cow out in the limits of the town, it was beyond the limits, and to prevent her from going in that way he drove her off in the opposite direction. She afterwards wandered to the point of injury. Such an ordinance cannot be held to prevent the citizen, in this state, from turning his stock out on the- commons, beyond the limits of the city, especially so, where he takes the pains to see that the animal, when turned loose, goes in an opposite direction. Such a ruling would, in effect, require every farmer in Henry county to either lose the benefit of the common range, or to guard the “outer walls” of every such incorporated town and city.
V. There was ample evidence to show that the defendant’ s engine killed this cow.