Brassfield v. Patton , 1888 Mo. App. LEXIS 418 ( 1888 )

Ramsay, J.

— -This'is an. action under section 809 of the Revised Statutes, commonly known as the double-damage act, for killing a two-year-old colt, belonging to plaintiff. The statement filed with the justice of the peace, and upon which the cause was tried in the circuit court, omitting caption and formal allegations was worded as follows : “ That on or about the seventh day of'December, 1886, defendants, by its agents, trustees, servants and employes, while running a locomotive and train of •cars over said railroad, in' said. Liberty township, run the same over and against,'struck and killed one two-year-old colt, and that said colt was, at the time'of said killing, the property of plaintiff, and of the value of ninety dollars ($90); that said colt came upon the track of said railroad in said township where it passes through and along and adjoining enclosed and cultivated fields. Plaintiff admits that there was a public road crossing near by where said colt was killed, but further states that defendant’s railroad runs so close to Charles Bailey’s private fence on the right of way of said railroad company, that it was impossible for said colt to turn around without being struck with said locomotive and cars, and the said defendants have failed and neglected to erect and maintain a lawful fence on the sides and along the right of way, so as to furnish a proper passway for animals, a passway to and from said crossing, and that by reason thereof said colt came upon said track, and the killing of said colt was occasioned then and there by the neglect and failure of the defendants to erect and maintain a lawful fence along the sides and on the edge of the right of way of said railroad lands to furnish space sufficient for animals to pass along the sides of said railroad track to said crossing. Plaintiff says he is damaged in the sum of ninety dollars, by reason of the killing of said colt as aforesaid, and. that by virtue of section 809 of Revised Statutes of 1879, as amended in the laws of Missouri for 1885, page 88, he became entitled and demands judgment for double the value of said colt, to-wit, the sum of one hundred and eighty dollars.” It is claimed by appellants that this statement is fatally defective in that it contains no allegation that the colt in question got upon the railroad at a point where the company was by law required to fence. Questions similar to this have been before the supreme and appellate courts of this state so often, and the decisions which pass upon complaints or statements drawn under this section are so numerous that the precedents, if all are looked to and considered, tend rather to confuse than to declare the exact requisites of a good and sufficient statement under the statute. In Nance v. Railroad, 79 Mo. 197, the supreme court said: “The railroad company, under the section upon which this action is based, is not liable to the owner of stock killed or injured unless it got upon the track at a place where the company is by law required to fence, no matter at what place it may be killed or injured, and no. decision of this court can be found in which a statement omitting that averment has been held good.” Similar decisions have been rendered in the following cases: Asher v. Railroad, 79 Mo. 432; Cecil V. Railroad, 47 Mo. 246; Morrow v. Railroad, 82 Mo. 169; Davis v. Railroad, 65 Mo. 44; Johnson v. Railroad, 76 Mo. 558. So it has been recognized by this court as settled : “ That it is the place where the animal got on the track and not where it was killed, that fixes the liability of the road.” Ehret v. Railroad, 20 Mo. App. 251; Summers v. Railroad, 29 Mo. App. 41; McIntosh v. Railroad, 26 Mo. App. 377, the two last cited cases holding that, by direct averment or necessary implication, the fact should appear that the animal got upon the defendant's railroad track at a point where, by the law, the defendant was required to erect and maintain fences. Tested by the rule prescribed in these cases, does the statement contain the necessary averment % At one place it states “that said colt came upon the track of said 'railroad, in said township, where it passes through and along, and adjoining enclosed and cultivated fields.” This, neither directly, nor by necessary implication, avers that that the animal came upon defendant’s railroad track at a point, where by law the defendants were required to fence. The statement nowhere contains the direct averment' of such fact, nor does it state facts from which it should be necessarily implied. To raise such an implication the statement should show that the point where the animal got upon the railroad ground was at a place other than those places where the defendants were not required by law to fence. Sufficient negative averments should appear to show that the animal did not enter upon the defendants’ road inside of a city or town at depot grounds or at a public crossing. In pleading under such a statute as this, it is always better to make these necessary allegations by direct averment. It should be remembered that it is the statute which, in such cases, gives the remedy here sought. The statute is penal, and no cause of action should be maintained under it that does not clearly and fairly fall within its provisions. The statement in this case “admits that there was a public road crossing near by where said colt was killed,” and further alleges that defendants’ railroad runs so close to a private fence on the right of way, that it was impossible for the colt to turn around without being struck by the locomotive and cars. From these allegations the implication might more readily arise that the colt entered upon the railroad at this public crossing (where defendants were not required to fence) and- owing to the proximity of Bailey’s private fence, it, through fright, was unable to make its escape from the crossing in time to avoid the collision, than that the colt entered upon the track at a point where defendants should have fenced their road. If the colt entered upon the defendants’ road at a public road crossing, viz., atany pointincluded within the limits of the public road where said road crossed the railroad track, the plaintiff was not entitled to recover under the statement in this case. It will be noted that the failure upon part of defendants to comply with section 809 charged in the petition, is that “defendants have failed and neglected to erect and maintain a lawful fence on the sides and along the right of way so as to furnish a proper passway for animals,” etc. Such a statement was directly passed upon by this court in Ehret v. Railroad, supra, loc. cit. 258. It was unquestionably the duty of the defendants to construct a cross-fence or other proper barrier, extending from the track on each side out so as to connect with fences on the sides of its road, where the sides of its road are fenced, and to erect and maintain under such circumstances proper cattle-guards. Edwards v. Railroad, 74 Mo. 117. But no violation of this duty is alleged in the statement. The complaint seems to be that animals could not pass along the sides of said railroad trade to the crossing, not that owing to a defective cross-fence, or an absence of such fence, stock were permitted to pass from the crossing up 'or down the railroad track to points where there was no crossing. The statement, in our opinion, under a long line of decisions in this state, is fatally defective. We are strengthened in this view of the case by a consideration of the evidence preserved in the record. The evidence all shows that the colt came onto the defendants’ railroad at the public road crossing mentioned in the statement; that it was struck by the engine from six to eight feet east of the end of the plank which served as the crossing for wagons and other vehicles; that the limits of the public road extended south and east of the aid of these plank seven oreightfeet, so that not only the point where the colt entered upon the track, but the point where the collision took place was within the limits of the public road.

For the reasons mentioned the judgment is reversed.

Ellison, P. J., and Hall, J., concur in the result because the action is based on section 809, and ■ the evidence all shows that the colt came upon the defendants’ railroad at a public crossing.