Kirkpatrick v. Illinois Southern Railway Co.
Missouri Court of Appeals
Appeal from St. Francois Circuit Court. — Hon. Robt. A..'Anthony, Judge. The demurrer to tbe testimony as to tbe second count should have been .sustained, because the plaintiff’s own testimony showed that he and his agent, with his son saw the cattle and hogs wander upon their premises and knew that said cattle and hogs were their own and deliberately day after day saAV them destroying their crops, without attempting to prevent the alleged destruction, when they could easily…
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Appeal from St. Francois Circuit Court. — Hon. Robt. A..'Anthony, Judge. The demurrer to tbe testimony as to tbe second count should have been .sustained, because the plaintiff’s own testimony showed that he and his agent, with his son saw the cattle and hogs wander upon their premises and knew that said cattle and hogs were their own and deliberately day after day saAV them destroying their crops, without attempting to prevent the alleged destruction, when they could easily have done so. Plaintiff should now be estopped to claim any damages. Mil-burn v. Railroad, 86 Mo. 104; Lawrence v.…
1Opinion of the CourtNortoni, J.
(after stating the facts)
It is insisted by appellant that inasmuch as the first count of the petition, that pertaining to the loss of the cattle, counts upon the failure of the railroad to erect and maintain fences only, as its specification of negligence, the plaintiff cannot recover for the reason that there is a variance betAveen the pleadings and proof, as it maintains the cattle came to the place of collision over a point on the railroad tracks where it should have maintained a cattle-gua-rd and by reason of its failure to maintain such cattle-guard. The argument is to the effect that…
2Cases cited7 opinions
- Gorman v. Pacific RailroadSupreme Court of Missouri · 1858
- State ex rel. Clinton County v. Hannibal & St. Joseph RailroadSupreme Court of Missouri · 1883
- Milburn v. Kansas City, St. Joseph & Council Bluffs RailroadSupreme Court of Missouri · 1885
- Acord v. St. Louis Southwestern Railway Co.Missouri Court of Appeals · 1905
- Snider v. St. Louis, Iron Mountain & Southern Railway Co.Supreme Court of Missouri · 1881
2 more not listed; retrieve them via the Exa API.
3Cited by6 opinions
- Dorsey v. Chicago, Burlington & Quincy RailroadMissouri Court of Appeals · 1913
- Corcoran v. Wabash RailroadMissouri Court of Appeals · 1909
- James E. Edie & Son v. Kansas City Southern Railway Co.Missouri Court of Appeals · 1908
- Marion v. St. Louis & San Francisco RailroadMissouri Court of Appeals · 1907
- Gee v. St. Louis & Gulf Railway Co.Missouri Court of Appeals · 1907
1 more not listed; retrieve them via the Exa API.