Morrow v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant.
Railroads : double damages fob killing cattle : pleading. To authorize a judgment against a railroad company for double the yalue of an animal killed on its track, the petition must aver, either directly or inferentially, that the killing was occasioned by the failure of the company to erect and maintain fences as required by section 809, Revised Statutes 1879. Cunningham v. R. R. Co., 70 Mo. 202; Sloan v. R. R. Co., ante, p. 47, followed.
Appeal from Atchison Circuit Court. — Hon. H. S. Kelley, Judge.
Reversed.
The petition stated the running against and over plaintiff’s mare by the locomotive and cars of the defendant; that the place where this occurred was open prairie and not near any crossing ; and that defendant had neglected and failed to fence its railroad, although it had been built more than three months.
Strong $ Mosman for appellant.
R. H. Crandal for respondent.
Housii, J.
This was a suit under section 809, Revised Statutes, to recover double the value of a mare belonging to the plaintiff, alleged to have been killed by the engine and cars of the defendant. There was a verdict for the plaintiff, and judgment for double damages. The petition fails to state that the injury was occasioned by the failure of the defendant to construct and maintain fences and cattle-guards as required by said section, and under the previous rulings of this court, it is, therefore, insufficient to support the judgment. Cunningham v. R. R. Co., 70 Mo. 202; Sloan v. R. R. Co., ante, p. 47. The judgment must, therefore* be reversed, but as the cause was originally in*83stituted in the circuit court, and the petition may, therefore, be amended so as to state a cause of action, although it states none now, the cause will be remanded for further proceedings.
The other judges concur.