Ringo v. St. Louis, Iron Mountain & Southern Railway Co.

Brace, J. This is a suit commenced in a justice’s court to recover double damages, under section 809, Revised Statutes, 1879, for a mare killed on defendant’s road by a train of cars. The plaintiff had judgment before the justice, and in the circuit court, and the defendant appeals to this court. The case was tried before the court, without a jury. On the trial, the defendant objected to the introduction of any evidence, for the reason that no cause of action [670] was stated. The only ground upon which it is here urged that the statement upon which the case was tried is insufficient, is that it is not alleged therein that the .plaintiff’s mare entered upon the defendant’s track at a point.not within the limits of an incorporated city or town. The averments in the statement, in this respect, are, that “ said killing took place at a point on said railroad where the same passes through, along, and adjoining cultivated and inclosed farm land, and not in the crossing of a public highway, or at any crossing of the road, whatever,” and that, “at the point aforesaid, the mare strayed and got upon the track, and was killed.” It is not necessary that the statement should contain an express averment that the point at which the animal got upon the track was not within the corporate limits of an incorporated city.or town. It is sufficient if that fact appears by necessary implication from the facts contained in the statement. Manz v. Railroad, 87 Mo. 278. It is sufficient if the facts stated negative the presumption that it might have occurred within the corporate limits of an incorporated city or town. Perriquez v. Railroad, 78 Mo. 91. The averment that the animal entered upon the track at a point where the railroad “passes along, through, and adjoining an inclosed field,” negatives the presumption that the entry might have occurred within the corporate limits of an incorporated city or town. Williams v. Railroad, 80 Mo. 597. The allegation, in this case, that the animal “got upon the track at a point where said railroad passes through, along, and adjoining cultivated and inclosed farm land,” by necessary implication, negatives any presumption that the entry might have occurred within the corporate limits of an incorporated city or town. Perriquez v. Railroad, and Williams v. Railroad, supra; Wade v. Railroad, 78 Mo. 363; Johnson v. Railroad, 80 Mo. 621; Jantzen v. Railroad, 83 Mo. 171. [671] The second ground upon which the defendant asks for a reversal of this cause is, that there was a failure of proof that the animal got upon the track at a point where defendant was required by law to fence. The defendant, on the trial, did not demur to the evidence for its insufficiency, nor was the attention of the trial court called to such supposed defect of proof in the motion for a new trial, and that question, not having been passed upon by the trial court, is not before us for consideration. Blakely v. Railroad, 79 Mo. 388; McCoy v. Farmer, 65 Mo. 244, and cases cited. The judgment of the circuit court is affirmed. All concur.