Vail v. Kansas City , 1887 Mo. App. LEXIS 141 ( 1887 )

Philips, P. J.

I. The first objection of appellant is, that the statement does not contain facts sufficient to constitute a cause of action. The action was manifestly brought under section 2124, Revised Statutes, authorizing the recovery of damages, without any proof of negligence, where the injury occurs for killing such stock at a‘point on the railroad where the company may inclose the road with a lawful fence. Under this section it is held, to constitute a cause of action, that three things devolve upon the plaintiff : (1) That the injury must appear to have occurred at a place where there was no lawful fence; (2) at a place where such' fence could have been erected by the company had it so desired ; and (3) that it occurred at a place other than the crossing of a public highway, and not within the limits of any incorporated town or city. Clarkson v. Railroad, 84 Mo. 586, loc. cit. The only tangible objection to the statement in this case is, that it does not, in so many words, appear that the railroad track was not fenced at the point in controversy, it only being averred that the tract of land owned by defendant, over which its road ran, was not fenced. It has been repeatedly held that, under the statute requiring such roads to be fenced, or permitting the company to fence, it was not, essential to a recovery that the statement should aver in exact terms that the injury did not occur at a public road-crossing, or within the limits of. an incorporated town or city, or that it was a point where it might fence and had failed so to do. It is sufficient if the statement contains such facts as negative the existence of the public road-crossing at such point, or that it was not inside of the town limits, or states such facts as to reasonably justify the inference of the absence of such fence. This is especially so after the verdict. Dorman v. Railroad, 17 Mo. App. 337; Bowen v. Railroad, 75 Mo. 427; Terry v. Railroad, 77 Mo. 255; Edwards v. Railroad, 74 Mo. 121; Kronski v. Railroad, 77 Mo. 363; Campbell v. Railroad, 78 Mo. 639.

In Thomas v. Railroad (82 Mo. 538) it is said: “The statement is sufficient when it states facts which necessarily imply that the failure to fence caused the injury complained of.” So, in Belcher v. Railroad (75 Mo. 515-516), Norton, J., said: “ We have held that if, in a statement filed before a justice of the peace, the nature of the transaction and the particulars of the demand appear so as to apprise the opposite party what he is called upon to defend, and specific enough to bar another action, it is sufficient.” And in Stanley v. Railroad (84 Mo. 625), it was held, that a statement which averred the killing to have occurred at a place where the company was required to fence, and it had failed to do so, although defective in not averring that the point was not at a public road-crossing, nor within the limits of an incorporated town or city, is sufficient after verdict, where the deficiency has been supplied by the evidence.

We think the statement in this case sufficient after verdict. Both parties at the trial seem to have regarded the fact at issue as to the existence of a fence at the point of the injury. The witness, Allen, testified, without objection, “there are no streets and alleys, intersecting the ground, so that if defendant’s track and ‘ Y’ were fenced, no streets, alleys, or lanes of the city of Clinton, or any additions to the same, would be obstructed by the same. The tracks, including the ‘ Y,v could be fenced without interfering with the defendant’s business or with the public. It is not fenced, however.” The defendant raised no objection at the trial, neither by objection to the evidence, nor in the motion for new trial. There was no motion in arrest filed. There was sufficient averred, we think, to negative the idea that there was any fence along the sides of the railroad track, especially so after the proofs and the verdict.

II. Complaint is also made of the instruction given on behalf of plaintiff, which told the jury that if the road was not fenced at such point, it did not devolve upon the plaintiff to prove actual negligence in running and managing the cars. This is what the statute says ; and so has the Supreme Court repeatedly held. Edwards v. Railroad, 66 Mo. 571; Radcliff v. Railroad., 90 Mo. 133-134.

III. Appellant complains that the instruction given for plaintiff is in conflict with one given on defendant’s behalf, in that the latter only authorized the plaintiff to recover in the event the injury was negligently committed by defendant) or that defendant’s servants saw the cow, or, by the exercise of proper diligence, might have seen her, etc. A party cannot be heard to complain that an instruction given at his instance- conflicts with one given for the other party, when such conflict constitutes error in his favor. Alexander v. Clark, 83 Mo. 482; Houx v. Batteen, 68 Mo. 84; Crews v. Railroad, 19 Mo. App. 311. Especially must this be so when the jury have found against the fact predicated in the instruction erroneously given.

IY. It is finally assigned for error that, at the time of this injury, there was an ordinance of the city of Clinton in force, put in evidence by defendant, prohibiting stock from running at large within the corporate limits of the city, and that plaintiff had, in violation of this ordinance, turned his said cow at large inside of the corporate limits. The difficulty in defendant’s way is, that the evidence fails to show that plaintiff turned his cow loose inside of the corporate limits of Clinton.' On the contrary, the evidence rather tends to show that plaintiff resided outside of the corporation, and that he, so far from turning his cow out in the limits of the town, it was beyond the limits, and to prevent her from going in that way he drove her off in the opposite direction. She afterwards wandered to the point of injury. Such an ordinance cannot be held to prevent the citizen, in this state, from turning his stock out on the- commons, beyond the limits of the city, especially so, where he takes the pains to see that the animal, when turned loose, goes in an opposite direction. Such a ruling would, in effect, require every farmer in Henry county to either lose the benefit of the common range, or to guard the “outer walls” of every such incorporated town and city.

V. There was ample evidence to show that the defendant’ s engine killed this cow.

The other judges concurring, the judgment of the circuit court is affirmed.