Chaney v. Wabash, St. Louis & Pacific Railway Co. , 1885 Mo. App. LEXIS 392 ( 1885 )

Opinion by

Philips, P. J.

This is an action to recover damages for injury to plaintiff’s mare, alleged to have been inflicted by defendant’s train of cars at a point on the road where it was not fenced and not at a public crossing. The statement is as follows, the action being instituted in a justice’s court in an adjoining township to that in in which the injury occurred :

“ Plaintiff states that the defendant is a corporation, operating a railroad under and by virtue of the laws of the state of Missouri; that heretofore, to-wit, on or about the third day of February, 1880, in the township of Jackson, Clinton county, Missouri, which is a township adjoining Lathrop township, in the same county, plaintiff’s mare strayed upon defendant’s railroad track, at a pqint where there is no public crossing, and where defendant’s railroad is not inclosed by any lawful fence, as required by the statute, and where the same runs through uninclósed prairie land. That at said time and place the defendant’s locomotives and cars, in charge of and operated by defendant’s agents and employes, struck and killed the said mare, to the damage of plaintiff in the sum of one hundred and twenty-five dollars. Wherefore, he prays judgment for two hundred and fifty dollars.”

Plaintiff recovered judgment for double the value of the mare in the sum of two hundred and fifty dollars.

Defendant has brought the case here on appeal.

1. The sufficiency of .such a statement has been so repeatedly affirmed by the appellate and supreme court of this state, that we shall not say more than that the statement is certainly good after verdict.

2. The point is raised by appellant that, as the action was brought before a justice of the peace outside of the township in which the injury occurred, the trial justice had jurisdiction only to render judgment for the sum of one hundred and. fifty dollars, as prescribed by the provision of the statute conferring jurisdiction in ordinary actions for damages on justices of the peace.

This suggestion finds its plausibility in the language of section 2835, Revised Statutes. As this section stood in the general statute of 1865, there was no question but its operation was confined to the justices of the township wherein the injury occurred. And thus the courts so understood and construed it. But in the revision of 1879, in defining where such suits should be brought, the revisors added, in section 2839, the words, “or any adjoining township.” The evident object of this amendment was to extend the operation of the statute, conferring jurisdiction on justices of the peace in such actions without regard to the amount involved, to justices of adjoiningtownships. The amendment wouldhave been meaningless and useless without it. The .revisors simply neglected to make the change in section 2836 to conform to section 2839. In the construction of a statute the intent of the legislature is to be gathered from every part of it, and this intent, when ascertained, is often as much within the statute, and is to control its operation, as if unambiguously expressed. In the matter of Bomino's heirs, 83 Mo. 433 ; see, also, Fetterling v. R. R., 79 Mo. 504; Connor v. R. R., 59 Mo. 293; Creason v. Same Deft., 17 Mo. App. 111.

3. The principal controversy in this case was as to whether the point where the animal came upon defendant’s track and was killed was a public highway. The question is simply one of ffict, and was very fairly and squarely submitted by the court to the jury under the instructions. We Lave carefully examined the evidence, and find there was ample proof on the part of the plaintiff to warrant the court in submitting the case to the jury. It would have been error in the court, in our opinion, to have taken - it from the jury. By its verdict we are concluded.

The judgment of the circuit court must be affirmed.

All concur.