Ayers v. St. Louis, Memphis & Southeastern Railroad , 124 Mo. App. 422 ( 1907 )

BLAND, P. J.

(after stating the facts). — Defendants make two points for a reversal of the case: First, that the instructions for plaintiff are erroneous in that they fail to define what a lawful fence is; and, second, that the petition is insufficient to support the judgment, or any judgment. The statute (section 1105, supra) requires railroad companies to erect and maintain lawful fences on the sides of their roads. A lawful fence, if constructed of posts and wire, as was defendants, must be four and one-half feet high. The posts must not be more than eight feet apart and be set firmly in the ground, and the wires must be securely fastened to the posts at proper distances apart to resist horses, cattle, swine and like stock. [R. S. 1899, sec. 3295.] What constitutes a lawful fence should have been defined in the instructions, hut we cannot see how defendants were prejudiced by the failure of the court to so instruct, for the reason the evidence is all one way that hogs passed through the fence ad libitum; and defendants did not attempt to show that the fence was a lawful one, in fact, offered no evidence in regard to the fence. Their defense consisted in an attempt to show defects in fences other than their own, inclosing plaintiff’s field, and in showing that a farm crossing gate was frequently left open and the hogs might possibly have gone into the field through the gate.

2. In regard to the petition, the locus in quo is sufficiently described to show that defendants were required to erect and maintain fences along the sides of their road, and cattle-guards were needed. It is inferentially stated that the hogs got on the right of way over a defective cattle-guard, and from the right of way into plaintiff’s field through a defective railroad fence. The petition substantially follows the language of the statute, and while we think it was probably open to attack by demurrer, it is sufficient after verdict and judgment* No reversible error appearing, the judgment is •■affirmed.

All concur.