Briscoe v. Missouri Pacific Railway Co.

Hall, J. Two questions are presented for our determination. The defendant first makes the point that the petition does not state facts sufficient to constitute a cause of action, and next that the evidence failed to make out a case against the defendant. I. The petition, in direct terms, alleges, with sufficient precision, that the animal was killed at a point on the defendant ’ s railroad track where it was the defendant ’ s duty to erect and maintain fences on the sides of such track. Dorman v. Railroad, 17 Mo. App. 339; Lepp v. Railroad, 87 Mo. 139. It was, however, essential for the petition to allege that the animal got upon the railroad track at a point where it was the defendant ’ s duty to so erect and maintain fences. The petition does not allege this directly, but does allege it inferentially. After alleging the place on the railroad track at which the animal was killed, the petition, continuing and referring to that place, uses the following words: “At that place, where said animal went upon said trade thus inferentially averring that the animal went upon the track at the place where it was killed. The petition [472] also inferentially avers that the animal went upon, the track by reason of the defendant’s failure to erect and maintain fences along the sides of its railroad. After alleging the failure of defendant to erect and maintain such fences at the place of killing, continuing and referring to said place and the said failure of the defendant, the petition avers as follows: “ At that place where said animal went upon said track, and by reason thereof,” meaning, of course, by reason of said failure on the part of defendant to erect and maintain such fences. These inferential averments were, in our opinion, sufficient in the justice’s court, where precision in pleading is not required. From the language of the petition, the essential facts are necessarily inferred. This is sufficient. II. The evidence tended to show that the animal was found in a bruised and crippled condition in a ditch along the defendant’s railroad, about an hour after the passage of one of defendant ’ s trains of cars. From these facts, the court could have reasonably inferred that the train had struck and crippled the animal. From the fact that the fence along the defendant’s track, at the point where the animal was found, was in such a condition that the animal could have there passed through the fence, the court could have reasonably inferred that the animal did so pass through the fence at such point. It was not necessary to prove the place at which the animal got upon the track by direct evidence. It was proper to make such proof by circumstances. Lepp v. Railroad, 87 Mo. 141. The evidence was sufficient to support the finding of the court. Judgment affirmed. Ellison, J., concurs; Philips, P. J., absent.