Jenkins v. Chicago & Alton Railroad

Hall, J.

— This was an action under section 809, Revised Statutes, begun before a justice of the peace for the recovery of double damages for the killing of plaintiff’s cattle by the defendant. Objection is made to the sufficiency of the statement on the ground that it does not state that the suit was under said statute. Where a statement is otherwise defective, a reference therein to said statute has sometimes been held to help out the statement and render .it good. Summers v. Railroad, 29 Mo. App. 46, and cases cited. But- such reference is never necessary “where the complaint states facts which show that the animal got upon the track at a point where the company is required by law to fence its road.” A statement alleging such facts is always good. Mayfield v. Railroad, 91 Mo. 298; Summers v. Railroad, supra, and cases cited. The objection to the statement is not well taken.

The sole defense made by the defendant was that the animals in suit were killed in the crossing of a public road. There were two issues of fact in the case: (1) Was the lane in the crossing of which the animals were killed over a public road by use ? (2) If so, had it been abandoned by the people by non-user? The defendant complains of the action of the court in giving and refusing instructions on these two issues of fact. But under the evidence in the case, we are satisfied that the instructions wore as favorable to the defendant as they should have been.

Judgment affirmed.

All concur.