Jantzen v. Wabash, St. Louis & Pacific Railway Co.

1. Railroads; kiliang stock : statement. A statement under R. S., § 809, for double damages for killing plaintiff’s cow which alleges that she strayed upon the track at a point “one mile eastwardly from Harlem depot, where the road passes through and along uninclosed lands, where there were no fences on the sides of the road as required by law, and where said defendant has not erected or maintained lawful fences on the sides of said railroad,” and was there killed, reasonably excludes the inference that she came on the track at a public crossing or in an incorporated town or city, and sufficiently alleges that she was killed by reason of the failure to fence. 2. -: -: evidence. Where it appears from the evidence that the blood and carcass of the animal are found upon the track at a point which was not but should have been fenced, it will be presumed in the absence of evidence to the contrary, that it entered upon the tx'ack at that point.

Appeal from Clay Circuit Court. — Hon. G. W. Dunn, Judge. '(1) The statement is fatally defective. It does not show that the animal came upon the defendant’s track at a point other than at public crossing, or within the switch limits of a station or an incorporated town. Davis v. M., K. & T. Ry., 65 Mo. 441; Rowland v. St. L., I. M. & S. Ry., 78 Mo. 619 ; Sullivan v. Hannibal & St. J. Ry., 72 Mo. 195; Asher v. H. & St. J. Ry., 79 Mo. 432; Hudgens v. H. & St. J. Ry., 79 Mo. 418. It fails to state that the animal was killed by reason of the failure of defendant to fence its track at a point where such fences were required by law to be erected or maintained. Por all that appears in the statement, the injury may have occurred at a crossing or within the switch or corporate limits of a station or town. Luckie v. C. & A. Ry., 67 Mo. 245; Cunningham v. H. & St. J. Ry., 70 Mo. 202; Sloan v. Mo. Pacific Ry., 74 Mo. 48; Bates v. St. L., I. M. & S. Ry., 74 Mo. 60 ; Johnson v. St. L., K. C. & N. Ry., 76 Mo. 553. (2) There was a complete failure of proof in this case. It was not shown by the evidence where the animal got upon defendant’s track. The place where it got upon the track is the thing to be considered. G. W. R. R. v. Morthland, 30 Ill. 451; Shearman & Redfield on Neg., 3d Ed., § 462, p. 544; Cecil v. P. R. R., 47 Mo. 246 ; Witthouse v. A. & P. R. R., 64 Mo. 523; Snider v. St. L., I. M. & S. Ry., 73 Mo. 465 ; Bates v. St. L., I. M. & S. Ry., 74 Mo. 60. The statement is sufficient. It was filed before a justice of the peace, where plaintiff had judgment by default. Defendant appeared in the circuit court and went to trial without objecting to the statement. If it is sufficiently specific to be a bar to another action, it is good after verdict. Iba v. Railroad Co., 45 Mo. 469; Norton v. Railroad Co., 48 Mo. 387; Wood v. Railroad Co., 58 Mo. 109 ; Cummins v. Railroad Co., 70 Mo. 570. In the following cases the statements were held sufficient, although they did not negative the fact that the place where the stock was killed was not a public crossing, switch limits, oran incorporated town: Bowen v. H. & St. J. R. R., 75 Mo. 426 ; Snider v. I. M. R. R., 73 Mo. 465; Williams v. M. P. R. R., 74 Mo. 453 ; Rozelle v. H. & St. J. R. R., 79 Mo. 349 ; Wymore v. H. & St. J. R. R., 79 Mo. 247; Cowan v. St. L. R. R., 80 Mo. 423. This statement meets all the conditions required in section 809, and “its averments if not equivalent to such an allegation, will at least warrant an inference that the cow got upon the track by reason of the failure to fence,” and not at a crossing, which is not required by law to be fenced. Edwards v. K. C. & C. R. R., 74 Mo. 117; Razor v. I. M. R. R., 73 Mo. 471; Bowen v. H. & St. J. R. R., supra. The presumption of fact is that the cow came upon the track and was injured where the blood and hair marks were. To show the contrary is a matter of defence.