Kinney v. Hannibal & St. Joseph Railroad

Philips, P. J.- This action was begun in a justice’s court. The statement is as follows: ‘‘Plaintiff states that defendant is a corporation, duly incorporated under the laws of Missouri as a railroad corporation, and as such, at the time or times hereinafter mentioned, was operating a line of railroad through the township of' Shoal, in the county of Clinton, and state of Missouri, and that, in said township, where said railroad passes through, along, and adjoining enclosed and cultivated [615] fields, said company, at the times hereinafter mentioned, failed and neglected to erect, construct, and maintain lawful fences, where the same were required by law, and also at time have failed and neglected to construct and maintain cattle-guards sufficient to prevent horses, cattle, mules, and other animals from getting on said railroad. On the fourth day of November, 1886, plaintiff was the owner of a certain yearling steer, which animal was of the value of twenty-five dollars; that, on or about said date, said animal escaped from plaintiff, and came upon said railroad at said place, by reason of said failure and neglect of defendant to erect, construct, and maintain fences and cattle-guards on said railroad, where the same passes through, along, and adjoining enclosed and cultivated fields in said township, and that, while said animal was 'on said railroad, as aforesaid, defendant, by its agents, engines, and cars, did run upon, strike, wound, and kill said animal, by reason of its negligence aforesaid.” The plaintiff recovered judgment in the circuit court. It is objected by the defendant that the statement does not contain a cause of action in this: “It is not alleged that the injury was not in the crossing of any public highway.” The objection is not well taken. It is distinctly averred in the statement that the point in controversy is where defendant’s road “ passes through, along, and adjoining enclosed and cultivated fields.” As has been repeatedly held by the Supreme Court, and this court, this averment sufficiently negatives the idea that the point was either at the crossing of a public highway or within the limits of an incorporated town. Dorman v. Railroad, 17 Mo. App. 337, and citations. It is next alleged as ground of reversal that the evidence wholly fails to show that the injury occurred in Shoal township. If this be true, the judgment cannot stand. Mitchell v. Railroad, 82 Mo. 106. An examination of the evidence will show, we think, the venue with [616] sufficient certainty to have justified the verdict of the jury. The plaintiff testified that defendant’s road runs through Shoal township, in Clinton county. He further testified: “Defendant did not have any fence along the track adjoining the public road two and a half miles southwest of Cameron, in Shoal township, and no cattle-guard, as far as I could see, where the track crosses the highway. There was no fence from the outer line of the right-of-way to the track. Mrs. Smith’s field was on one side of the railroad and the Rock Island on the other. Mrs. Smith’s field was cultivated and enclosed. I was owner of the animal; saw it last, before it was hurt, at my home. I brought it home on Tuesday morning, and it was gone on Wednesday morning. I went back to where I got it; it crossed the highway where the track was not fenced. When I next saw it it was bruised, and was lying down, at Mrs. Smith’s place.” It is perfectly clear that the witness was speaking of a point in Shoal township. He says there was no fence along the track two and a half miles from Cameron, “in Shoal township.” Mrs. Smith’s field was on one side and the Rock Island road on the other of the track, at this point. Mrs. Smith’s field was cultivated and inclosed. It was, therefore, reasonably inferable that the point, two and a half miles from Cameron, which was in Shoal township, was the same point where Mrs. Smith’s field lay. This is supplemented by the witness Martin, who testified that he found the animal “on section, about five telegraph poles west of the crossing, at Mrs. Smith’s place, standing against the fence.” As the plaintiff’s testimony had clearly enough placed Mrs. Smith’s field, or fence, in Shoal township, and the other witnesses found the calf injured there on defendant’s road, the case as to the venue was sufficiently proved to authorize the submission of the fact to the jury. Judgment affirmed. All concur.