
    W. A. CLEM, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant.
    Kansas City Court of Appeals,
    June 18, 1906.
    1. RAILROADS: Killing Stock: Pleading: Legal Conclusion: Verdict. After a verdict the petition should not be most strictly construed against the pleader but should be construed liberally with a view to substantial justice; and an averment that the defendant failed, etc., to keep and maintain lawful fences and construct and maintain cattle guards though a mere legal conclusion is a sufficient allegation to support verdict.
    2. -: -: Lawful Fences: Instruction: Law and Fact. The only function of a jury is to decide issues of fact and it is an error to submit questions of law or mixed questions of law and fact such as leaving the jury to determine what is a lawful fence without an accompanying definition.
    3..-: -: -: -: -: Harmless Error. Though an instruction was erroneous in leaving to the jury a question of law as to what is a lawful fence it is held harmless since the question was not at issue in the trial and the fact that the animals may have reached the public road through the carelessness of the plaintiff can constitute no defense to their reaching the track of the defendant by defective cattle guards.
    Appeal from Sullivan Circuit Court. — Hon. John P. Butler, Judge.
    Affirmed.
    
      J. G-. Trimble and Wilson & Olapp for appellant.
    (1) The first count of tlxe petition does not state facts sufficient to constitute a cause of action. It nowhere states in what manner the fences and cattle guards were defective. It merely alleges that the company failed to keep and maintain lawful fences and cattle guards. This is the statement of a legal conclusion and does not help the petition. Pattison’s Mo. Code Plead., secs. 34, 108, 109, 131, 144; Pomeroy’s Bern, and Bern. Bights, sec. 529; Bank v. Mulhall, 8 Mo. App. 558; Hart v. Wire Co., 91 Mo. 414. (2) Wherever a general demurrer to a petition would he well taken a motion in arrest of judgment is equally available. Hart v. Wire Co., 91 M'o. 414. (3) The giving of plaintiff’s instruction numbered 1 was reversible error. To submit to a jury questions of law or mixed questions of law and fact for their determination is error. This instruction left the jury to find that there was a failure to keep and maintain “lawful” fences and cattle guards, without calling their attention to what constituted a “lawful” fence or cattle guard. Fugate v. Carter, 6 Mo. 267; Hickey v. Byan, 15 Mo. 63; Turner v. Bailroad, 76 Mo. 261; Carroll v. Campbell, 110 Mo. 557; Estes v. Fry, 22 Mo. App. 80; Boot & Shoe Co1. v. Bain, 46 Mo. App. 581; Lesser v. Bailway, 85 Mo. App. 326; Jones v. Bailway, 59 Mo. App. 137.
    
      Wattenbarger & Bingham and 12. E. Ash for respondent.
    (1) The rule that a pleading will be construed most strongly against the pleader, will not be applied in the appellate court when the supposed defect was not called to the attention "of the trial court. Vivian v. Bobertson, 176 Mo. 223. (2) Defendant’s instruction in the nature of a demurrer to the evidence admitted all the facts the evidence tended to prove. Montgomery v. Bailroad, 181 Mo. 477. (3) The petition stated a good cause of action and plead every fact necessary, and would at all events be good after verdict. Marshall v. Furgeson, 78 Mo. App. 645; Young v. Sickle, 103 Mo. 324; Maugh v. Hornbeek, 98 Mo. App. 392; Andrew v. Lynch, 27 Mo. 169. (4) This instruction covered the law of the case and is similar to the instruction given in Kavanaugh v. Bailroad, 75- Mo. App. 78; Colyer v. Railroad, 93 Mo. App. 152. (5) Appellant must stand or fall on its demurrer to the evidence. Wheeler v. Bowles, 163 Mo. 398; Cornwell v. Transit Co., 106 Mo. App. 140; Bank v. Ragsdale, 171 Mr. 168.
   JOHNSON, J.

In the first count of the petition plaintiff seeks to recover double damages under the provisions of section 1105, Revised Statutes 1899, for the killing of two horses by defendant. He had judgment on this count in the sum of $470, double the amount of the verdict returned, and defendant appealed. In addition plaintiff had judgment on the causes of action pleaded in the remaining two counts of the petition, but defendant does not claim that error was committed in the trial of either of them and our inquiry will be confined to the cause pleaded in the first count.

First, it is insisted by defendant that no cause of action is pleaded. The allegations criticised are as follows: “Plaintiff further states that on said 28th day of November, 1903, defendant failed, neglected and refused to keep and maintain lawful fences along the sides of its railroad track and to construct and maintain cattle guards, as required by law, where said road passes through over and across the farm and cultivated fields of plaintiff. That by reason of defendant’s failure and neglect to keep and maintain proper and lawful fences along the sides of its said track and to construct and maintain cattle guards as provided by law inclosing its railroad on plaintiff’s farm, the horses aforesaid, owned .by plaintiff and by him kept on said farm, without the fault or procurement of plaintiff went upon defendant’s railroad and upon the track thereof through and over said defective fences and cattle guards where said railroad passes through plaintiff’s farm, in Sullivan county, Missouri, at a point where defendant was by law required to erect and maintain good and lawful fences along the sides of its said railroad and to construct and maintain cattle guards, and not at the crossing of any public higlnvay or other road and not within the limits of any incorporated town or city.”

No attack was made on this pleading by demurrer or motion, but defendant answered to the merits. At the trial defendant made the general objection that this count of the petition fails to state a cause of action, bnt did not state the ground of the objection. In the motion in arrest the objection was renewed. It is supported here by the argument that the pleader should have stated in what manner the fences and cattle guards were defective and that the omission of such averment is not supplied by the statement that defendant “failed, etc., to keep and maintain lawful fences . . . and to construct and maintain cattle guards as required by law',” since such statement embraces nothing more than a mere legal conclusion.

We have noted the fact that the attention of the trial court was not called to this supposed defect until after verdict. In this state of the case the defect, if one exists, will be deemed to have been cured by verdict. The rule is well settled that “after verdict the petition should not be most strictly construed against the pleader, but should be construed liberally with a view to substantial justice.” [Saxton v. Railroad, 98 Mo. App. 494; Munchow v. Munchow, 96 Mo. App. 553; Vivian v. Robertson, 176 Mo. 219.] It cannot be denied that defendant was notified by the averments under consideration to meet the charge of a breach of the duty imposed on it by the provisions of Revised Statutes 1899, section 1105 to erect and maintain on the land in question fences and eattle guards of the standard fixed by law (Revised Statutes 1899, sec. 3294, King v. Railway, 79 Mo. 328); and this being true, a fair and liberal construction of the petition necessitates the inference that the existence of the essential fact was sufficiently alleged to support a verdict.

The court at the request of plaintiff gave the following instruction: “The court instructs the jury that if they find and believe from the evidence that plaintiff was on the 28th day of November, 1903, the owner of the farm described in his petition and that defendant company on said day owned and operated a. railroad through, over and across said farm and the inclosed and cultivated fields thereof in Duncan township, Sullivan county, Missouri, and that plaintiff was on said date the owner of the two horses mentioned in said petition, and that said horses were kept in the inclosed fields of plaintiff, through, over and across which defendant’s railroad passes, and that said railroad was not inclosed by lawful fences on both sides thereof, and that by reason of such failure to keep and maintain good and lawful fences and cattle guards along its said right of way, plaintiff’s said horses escaped from the pasture or the inclosed and cultivated fields as aforesaid, and came upon defendant’s railroad, without the fault or procurement of defendant, in Duncan township, Sullivan county, Missouri, by reason of the failure and neglect of defendant company to keep and maintain good and lawful fences and cattle guards along the sides of its said railroad at the place where said horses came upon the said railroad as required by law; if you find said horses did come thereon, and that said horses were struck and killed by defendant’s engine and cars while being run and operated by defendant’s agents, servants and employees by reason thereof, then your verdict will be for plaintiff on the first count of his petition for such sum as you may believe said horses were reasonably worth, not to exceed the sum of two hundred and fifty dollars.” . ■

In thus submitting to the jury the question of whether or not defendant maintained lawful fences and cattle guards along its right of way without defining the term, the court permitted the jury to determine the law as well as the fact involved in that issue. This was error. The only function the jury has is to decide issues of fact and it is error to submit to that body questions of law or mixed questions of law and fact. [Fugate v. Carter, 6 Mo. 267; Hickey v. Ryan, 15 Mo. 63; Turner v. Railroad, 76 Mo. 261; Carroll v. Campbell, 110 Mo. 557; Estes v. Fry, 22 Mo. App. 80; Boot & Shoe Co. v. Bain, 46 Mo. App. 581.]

But plaintiff contends the error should be regarded as harmless for the reason that the uncontradicted evidence shows that the fences and cattle guards maintained by defendant along its right of way through the field where plaintiff kept his stock were not lawful fences and cattle guards and therefore the court would have been justified in withdrawing* that fact from the issues submitted to the jury. The fact that the animals were killed by one of defendant’s trains at a place on the road where it runs through plaintiff’s farm is conceded. Plaintiff and his witnesses testified that for some twelve months before the occurrence a gap several yards wide existed in the right of way fences, that permitted the passage of stock in the adjoining fields of plaintiff to and across defendant’s right of way. At another place, the .fences were partially down and stock could cross over at that place. A public wagon road bisected plaintiff’s farm and crossed the railroad at a right angle and it was shown that the cattle guards maintained by defendant at this crossing were so out of repair that they were insufficient to turn stock. All these facts are in effect conceded by defendant and the only controverted fact on this branch of the case is whether the animals entered the right of way through the opened gap in the fence or passed from the adjoining field of plaintiff to the wagon road through a gate, travelled on this road to the railroad and then entered the right of way over the cattle guard. The facts adduced by plaintiff strongly tend to show that the right of way was reached through the opening in the fence, while defendant attempted to show that it was entered by way of the public road and cattle guard. In either case, we do not perceive how defendant may expect to escape liability under the conceded facts. The statute (Revised Statutes 1899, sec. 1105), imposed on it the duty to maintain cattle guards “sufficient to prevent horses, etc., from getting on the railroad.” This duty according to all the evidence it did not perform. Conceding that the animals may have reached the wagon road through the carelessness of plaintiff or his servant in leaving open or unfastened the gate in the fence that separated his'field from the wagon road, such fact would not affect the liability of defendant for damages sustained in consequence of the animals reaching its track by way of the defective cattle guards. It follows that the error in the instruction could not have been prejudicial and the judgment accordingly is affirmed.

All concur.  