
    Benjamin West, Defendant in Error, v. The Hannibal and St. Joseph Railroad Company, Plaintiff in Error.
    
      Railroads — Negligence.—A petition against a railroad company for killing stock must either allege that the injury was caused by the negligence or wilfulness of the defendant, or set forth such facts as show that it is liable under the statute, It. C. 1855, p. 619, § 5, “ Damages,” which is equivalent to the allegation of negligence. (See Brown v. Hannibal and St. Joseph R.R., 33 Mo. 309.)
    
      Error to Marion Circuit Court.
    
    
      D. G. Davenport, for defendant in error.
    
      James Carr, for plaintiff in error.
   Dryden, Judge,

delivered the opinion of the court.

In this case the judgment must be reversed for the want. of a statement of sufficient facts in the petition to constitute a cause of action. The suit is for the killing of a cow of the defendant in error, by means of the locomotive and cars of the plaintiff in error, while running on its road. The pleader attempted to' frame his petition on the fifth section of the act concerning damages, but failed to aver, as it was necessary to do in order to show a cause of action under that section, that the act complained of did not occur on any portion of the road enclosed by a lawful fence, or in the crossing of a public highway. The averement of these facts is equivalent to the averment of negligence or wilfulness, but in this case the petition fails in both. Let the judgment be reversed and the cause remanded ;

the other judges concur.  