Hurley v. Missouri Pacific Railway Co.

Gill, J.

— This action was begun in December, 1890, and plaintiff’s amended petition on which this case was tried in substance alleged: That on the twenty-seventh day of October, 1888, the defendant was in possession of and operating its railroad in Johnson county in the state of Texas; that plaintiff then and there owned a mule of the value of $200, which, without any fault of the plaintiff, strayed upon the track of the said railroad; “and plaintiff says the defendant so negligently managed, ran and operated said road that it, on the said twenty-seventh day of October, while running a certain engine and train of cars on said road, *680 and -with, said engine and cars negligently and carelessly ran over, maimed and wounded said mule so upon its track,” rendering the same worthless, etc., to plaintiff’s damage in the sum of $200, for which judgment was prayed.

The defendant answered, denying generally the allegations of the petition, and pleading specially the limitation law of the state of Texas, barring “an action for trespass for inj ury done to the estate or the property of another” after two years “after the cause of action shall have accrued.” The issues were tried by the court sitting as a jury.

Over the objections of the defendant, plaintiff was permitted to introduce a section of the Texas statute, declaring, in effect, that railroad companies should be held liable for the damage to stock run over and killed or injured by the locomotives or cars where-the tracks are not fenced. Plaintiff also introduced other testimony, showing ownership and value of the mule, that it was run over by defendant’s train and rendered practically valueless, and that the track was not fenced where the mule was injured. Plaintiff asked no declarations of law. The defendant however requested an instruction in the nature of a demurrer to the evidence, which was refused and defendant'excepted. The court then found for the plaintiff, gave him judgment for $150, and defendant appealed.

I. The first matter complained of relates to the action of the court in permitting plaintiff to amend his petition. Counsel say that the amended petition is a clear departure from the cause set out in the original complaint. However this may be, since the'defendant made answer to the amended petition and went to trial on the issues thus raised, all objections to the propriety of allowing the amendment are to be deemed as waived. Scovill v. Glasner, 79 Mo. 449 ; Lawless v. Lawless, 39 *681 Mo. App. 539 .

II. The second and third assignments of error may be considered together. It is insisted that the court erred in admitting the Texas statute imposing the duty on the defendant to fence its track, and further that, being admitted, such statute had no tendency to prove the case alleged in the petition. " In other words it is said, the petition is grounded on alleged negligence in operating a train of ears, whereas the statute in question would only tend to sustain the charge of a failure to fence.

There is much reason and force in this contention. The very object of our code pleading is to advise the party sued of the exact nature of the charge against him. And released from controlling , precedents, I should say, that if the plaintiff sought to hold a railroad company liable for damages by reason of the failure to fence its tracks, then the petition ought to so advise the defendant, and not cover up the real matter relied on by the use of such language as we have here, to wit: “that defendant so negligently and carelessly managed,'ran and operated said road that it * * * negligently and carelessly ran over, maimed and wounded plaintiff’s said mule,” etc. However, beginning with Calvert v. Railroad, 34 Mo. 242 , such a general allegation has been held sufficient to admit proof of a failure to fence as required by the statute. In that case under a petition alleging that the railroad company did negligently and carelessly run over, maim and kill, certain cattle belonging to the plaintiff, it was held that the plaintiff might prove either actual negligence arising from the circumstances of the collision, or mere constructive negligence arising from the failure to construct and maintain a fence. This holding was emphasized when that case again came back to the supreme court ( 38 Mo. 467 ), and has been since *682 repeatedly followed and approved. Iba v. Railroad, 45 Mo. 470 ; Minter v. Railroad, 82 Mo. 128 , and cases cited; Boone v. Railroad, 20 Mo. App. 232 ; Hill v. Railroad, 49 Mo. App. 520 .

III. The further question arises, admitting now that the failure by the defendant to fence its tracks in the state of Texas constituted negligence for which it may be held liable, should the courts of this state give their aid to enforce such responsibility? In Story on Conflict of Laws [8 Ed.], p. 35, it is said that “in the silence of any positive rule affirming or denying or restraining the operation of foreign laws, courts of ■ justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interests.” In the matter now in hand there is nothing in the law of Texas, requiring railroads to fence their tracks, repugnant to the laws of Missouri. Indeed the law of the two states is, in this regard, in entire harmony. The section of the Texas statute introduced in evidence is practically the same as that of our damage law (section 4428, Revised Statutes, 1889). It is the avowed policy of the legislature in the two states to require railroad companies to fence their rights of way where it can reasonably be done. While then we may be enforcing those salutary provisions of the Texas code, we are at the same time carrying out the spirit, if not the very letter, of our own statute law on the same subject.

There was not indeed any necessity'for the introduction of the Texas statute. In the absence of any proof as to what was the law of Texas the courts here would assume such law to be the same as that of Missouri. It would not be presumed that the common law was there in force, since Texas was never subject to the laws of England. Flato v. Mulhall, 72 Mo. 522 ; Bain v. Arnold, 33 Mo. App. 631 . In the absence, then, *683 of any evidence to the contrary the trial court would have presumed that in Texas there was the same obligation on the defendant, as here, to fence its railroad tracks.

The failure, then, of the defendant to fence its road at the point where plaintiff’s mule was run over, was the violation of a duty imposed by the law, and was, therefore, negligence. And for damages thereby resulting to the plaintiff’s property he might sue and recover in any jurisdiction. It was a mere transitory action.

It is clear that the limitation statute of Texas can not be used to bar this action.' The lex fori must govern. This point is fully covered by a late decision of this court, and authorities there cited. See Morgan v. Railroad, 51 Mo. App. 523 .

Judgment affirmed.

All concur.