Dorman v. Missouri Pacific Ry. Co. , 17 Mo. App. 337 ( 1885 )

Opinion by

Hall, J.

This case was begun before a justice of the peace.

In the circuit court an .amended statement or petition was filed, which, omitting the caption, is. as follows:

That the defendant is now and was at the time hereinafter. stated, a corporation duly organized and acting under the laws of the state of Missouri, and as such ran. and operated a railroad with engines, locomotives and cars thereon, in the town of Madison, county, of Johnson, state of Missouri. That on and prior- to the second day of February, 1882, plaintiff was the owner.of a certain cow of the value of forty (40) dollars. That on the day last aforesaid the said cow strayed upon the track of the defendant’s said railroad, at a point in said township where said road passed through, along, and adjoining enclosed and cultivated fields. That at the point where said cow strayed upon said railroad track and was killed, the said defendant did not then and there have lawful fences enclosing the sides of said railroad. That whilst said cow was on said defendant’s railroad track, the said defendant ran its engine and cars upon, against, and over said cow, whereby she was killed as aforesaid, in said Madison township, Johnson county, Missouri, and was wholly lost to plaintiff. Wherefore plaintiff prays judgment in double the value of said cow, as provided by. section 809, Revised Statutes of Missouri, 1876. '

The case was brought here by defendant by appeal from a judgment rendered in favor of plaintiff.

The only point made in the cause by defendant is that the amended statement above is insufficient, on account of want of allegations that the cow in suit did not enter upon defendant’s railroad track at a public crossing, or at a point within the limits of an incorporated city or town. We do not think the point well made. The statement avers that the cow got upon defendant’s railroad track at a point where said road passed through, along,' and adjoining enclosed and cultivated fields.

This averment sufficiently negatives the presumption that the cow might have gotten upon the railroad track at a public crossing or in an incorporated city or town. This averment follows the language of the statute and is sufficient.

If the cow got upon the railroad track at the point alleged, she could not have gotten upon the said track at the public crossing, or in an incorporated city or town, or at any other point or place, where it was not the duty of defendant to erect and maintain fences on the sides of its' railroad, for by the express provisions of the statute, in the same identical words, it is made the duty of the-defendant to erect and maintain such fences at the-point named in the statement.

The .statement is sufficient. — Perriquez v. R. R. Co., 78 Mo. 93; Campbell v. R. R. Co., 78 Mo. 642; Wade v. R. R. Co., 78 Mo. 365; Rozzelle v. R. R. Co., 79 Mo. 350.

The judgment of the circuit court is affirmed.

All concur.