Dyer v. Pacific Railroad

34 Mo. 127

• Court: Supreme Court of Missouri
• Decided: July 15, 1863
• Status: Published

Opinion

Dryden, Judge,

delivered the opinion of the court.

This is a suit against the corporation for damages for killing the plaintiff’s steer on the defendant’s railroad, by means of its locomotives and cars.

It is not averred in the petition, that the injury complained of was committed negligently or wilfully ; nor are the facts averred from which- the law raises the inference of negligence or wilfulness. The petition states there was no sufficient fence on the sides of the railroad at the place where the injury was committed, but it does not appear that the injury was not committed at the crossing of a public highway. (R. C. 1855, sec. 5, p. 649.) The petition, therefore, does not state facts sufficient to constitute a cause of action. (Quick v. H. & St. Jo. R.R., 31 Mo. 399; Brown v. H. & St. Jo. R.R., 33 Mo. 309.)

The court erred in overruling the motion in arrest, and for this cause the judgment is reversed and the cause remanded, with leave to the plaintiff to amend his petition.

The other judges concur.