Duncan v. St. Louis, Iron Mountain & Southern Railway Co.
Supreme Court of Missouri
Appeal from Madison Circuit Court. — How. J. D. Pozy Judge. (1) The circuit court erred in its refusal of defendant’s motion to require the plaintiff to elect on which: cause of action stated in Ms complaint he would proceed to trial; that is to say, whether for a failure on the part of defendant to erect and maintain lawful fences on the sides of its railroad, or a failure to erect and maintain proper cattle guards.
Read the full summary
Appeal from Madison Circuit Court. — How. J. D. Pozy Judge. (1) The circuit court erred in its refusal of defendant’s motion to require the plaintiff to elect on which: cause of action stated in Ms complaint he would proceed to trial; that is to say, whether for a failure on the part of defendant to erect and maintain lawful fences on the sides of its railroad, or a failure to erect and maintain proper cattle guards. R. S., sec. 3512; Bliss on Code Plead., sec. 125; Mooney v. Kennelt, 19 Mo. 551; Otis v. Banlc, 35 Mo. 128; Christal v. Craig, 80 Mo. 367. This is a penal action, and hence there…
1Opinion of the CourtBlack, J.
1. The plaintiff’s mare got upon the-defendant’s road through a gate in defendant’s fence, along the road where it passes through unenclosed lands, and was injured by the cars. The complaint states that the defendant failed to maintain lawful fences, cattle-guards, gates, and openings, etc. ; and the defendant moved to require plaintiff to elect upon which cause of action he would proceed. There is but one cause of action stated, or attempted to be stated, in the complaint. The plaintiff may allege a failure to maintain fences and cattle guards, and proof of either, with proof of the other…
2Cited by8 opinions
- Woods v. Missouri, Kansas & Texas Railway Co.Missouri Court of Appeals · 1892
- Miller v. Quincy, Omaha & Kansas City Railway Co.Missouri Court of Appeals · 1894
- Board v. St. Louis, Iron Mountain & Southern RailwayMissouri Court of Appeals · 1889
- Peery v. Quincy, Omaha & Kansas City RailroadMissouri Court of Appeals · 1906
- Rowen v. Chicago Great Western Railway Co.Supreme Court of Missouri · 1906
3 more not listed; retrieve them via the Exa API.