Davis v. Missouri, Kansas & Texas Railway Co.

65 Mo. 441

Opinion

Sherwood, C. J.

Action under 43d section (1 Wag. Stat. 310) for killing cattle. It is charged, in the statement filed with the justice, that the “ cattle, without the fault or neglect of the plaintiff, strayed in and upon the tr ck of defendant’s railroad, in Davis township, Henry county, where the same 'was unfenced, and by reason of defendant’s carelessness in the management of its cars upon said railroad through its agents and servants, said cattle were killed) and for which he asks judgment for double the amount of said cattle, to-wit: the sum of seventy dollars.” The plaintiff had judgment both before the magistrate and in the circuit court. The statute, (§ 13, p. 814, Wag. Stat.) requires in cases of this sort, “a statement of the facts constituting the cause of action.” (Brashears v. Strode, 46 Mo. 221; Swartz v. Nicolson, (infra p. 508.) The 43d section on which this' gction is based, applies only to those localities where the law requires the railroad to be fenced, as this court has repeatedly decided. (Musick v. A. & P. R. P. Co., 57 Mo. 134; Cary v. St. L., K. C. & N. R. R. Co., 60 Mo. 209.) This being the case, it is obvious that the bare statement, that the defendant’s road “was unfenced” where the accident occurred, stated no facts constituting a cause of action, and showed no liability on the paid of defendant under the section cited. The motion of defendant should, therefore, have prevailed and the cause have been dismissed. Judgment reversed.

All concur.

Reversed.