Hannibal & St. Joseph Railroad v. Kenney

Holmes, Judge,

delivered the opinion of the court.

The plaintiff sues for damages done to the railroad and a running train in consequence of the defendant’s mules getting upon the track. It is alleged that the plaintiff was the owner of the railroad, and was running a passenger express train on the road, at night, in the county of Caldwell, when a large number of mules belonging to the defendant, unlawfully and by reason of the defendant’s negligence, entered and were upon the track at a point where it was not the duty of the plaintiff to erect and maintain fences, and that without any negligence on the part of the plaintiff the train came in contact with the mulos, causing damage to the locomotive, train and road, to the amount of $20,000, for which judgment is *273 asked. The case is presented here on demurrer to the petition for the reason that it does not state facts sufficient to constitute a cause of action. It is urged in support of the demurrer, that the petition does not state any facts nor charge any acts of omission or commission on the part of the defendant, which in law amount to negligence for which the defendant is responsible in damages, and that it appears to be assumed that it was the duty of defendant to keep his mules in his own enclosure, and that in default thereof he would be responsible for any damage which they might do by going upon the enclosed land of others.

We cannot sustain this view of the matter. The fact is stated that the defendant’s mules' had got upon the track unlawfully and by reason of the negligence of the defendant; it is not merely that the mules had strayed upon the track without his fault or knowledge. It is not necessarily assumed that the defendant was bound to keep the mules in his own enclosure, but it is positively averred that they were on the track by reason of his negligence. The trespass of the mules may be his own trespass as well, and he is certainly responsible for his own negligence if the negligence averred can be proved. The existence-of negligence is a matter of fact, and must be proved like any other fact. The question what circumstances would amount to proof of negligence, or- would show negligence, would more properly arise when the evidence should be produced—Lee v. Cox, 16 Mo. 166 . It is settled law in this State, that the owner of animals is by our law under no obligation to fence them in ; that is, in not confining them, he is in no fault, nor is he guilty of any negligence—Gorman v. Pacific R.R., 26 Mo. 441 . But it was said in this case that “although the owner of animals is not bound to fence them in, yet there may arise a state of circumstances showing that he was guilty of such wilfulness or negligence in regard to his animals as would prevent a recovery of damages for their destruction”; and for the same reason we think he might be liable to the company for the damage done by them. The allegations *274 show a good cause of action. By what evidence the plaintiff will undertake to sustain them we, of course, cannot say, nor is it necessary that he should set forth his evidence in the petition. It may happen that no other evidence can be produced than the -mere omission to enclose his cattle, and that no negligence can be proved on the part of the plaintiff; and if the negligence of both parties were only the remote, and neither the proximate cause of the damage, it might present a case of unavoidable accident, or simple misadventure, for which none could be held responsible—Kimbacker v. Clev., C. & C. R.R. Co., 3 Ohio, 172. But no opinion need be given on such questions until they arise upon the trial of the cause. The subject has been considered by this court in several cases, and need be no further discussed at this time—Gorman v. Pacific R.R., 26 Mo. 441 ; Clark’s Adm’x v. Han. & St. Jo. R.R. Co., 36 Mo. 202 .

We are of opinion that the petition states a good cause of action, and that the demurrer should have been overruled.

Judgment reversed and the cause remanded.