Wood v. Kansas City, Fort Scott & Memphis Railroad

39 Mo. App. 63, 1890 Mo. App. LEXIS 36

• Court: Missouri Court of Appeals
• Decided: January 21, 1890
• Status: Published

Opinion

Rombauer, P. J.,

delivered the opinion of the court.

This is a penal action to recover double damages for the killing of plaintiff ’ s horse by defendant’s locomotive under the provisions of section 809 of the Revised Statutes of 1879. . The plaintiff’s statement, on which the cause was tried, is as follows:

“ Plaintiff- states that .the defendant is a railroad corporation, duly incorporated under, and by virtue of, the laws of the state of Missouri; that the defendant was, on the twenty-eighth day of June last, and is now, running and operating a railroad through Willow-Springs township, in the said county of Howell; that Hutton Valley township adjoins the said township of Willow Springs. That on the twenty-eighth day of June, 1888, in the said township of Willow Springs, one mare, the property of plaintiff, got on the railroad track of defendant and was run over and killed by defendant’s cars, then and there being run and operated by the agents, servants and employes oí defendant. That the said mare was run over and killed in consequence of the neglect and failure of the defendant to erect and maintain fences along said railroad, as the law requires defendant so to do; that said mare was of the value of seventy-five dollars. Plaintiff, therefore, prays judgment for one hundred and fifty dollars, double the value of said mare.”

Upon the trial the defendant objected to the introduction of any evidence, because the statement failed to state a cause of action. The objection was renewed by motion in arrest after judgment against the defendant, and the ruling of the court, in adjudging the statement sufficient, is assigned for error in this court.

Under the ruling of the supreme* court in Ward v. Railroad, 91 Mo. 168, which is the last controlling decision of that court on the subject, we must hold that •the statement is fatally defective. It avers neither that the-animal came upon the track, nor that it was killed at a place where the railroad passes through, along or adjoining enclosed or cultivatéd fields or unenclosed lands. It does not even contain a reference to the section of the statute, which, in Jackson v. Railroad, 80 Mo. 147, was held sufficient, after verdict, to cure a defective averment of this character, the review in that case being one on the record proper only

Other points, made in appellant’s brief, we have decided adversely to appellant in Young 'o. Railroad, ante, p. 52, and need not review again. Under the ruling in Mantz v. Railroad, 87 Mo. 281, the plaintiff may amend his statement in the circuit court prior to a retrial of the cause, if the facts will warrant his so doing.

All the judges concurring, the judgment will be reversed, and the cause remanded.