
    F. T. Aubuchon, Plaintiff in Error, vs. St. Louis & Iron Mountain Railroad Co., Defendant in Error.
    1. Practice, civil — Pleading—Statement of cause of action. — The petition alleged that the defendant, a railroad company, negligently and carelessly ran over and killed some of the cattle of the plaintiff, and that the same was done at a part of the road that was not enclosed by a lawful fence, and that was not a public road 'crossing. Held, that the petition set out a good cause of action.
    
      Error to Washington Circuit Court.
    
    
      G. I. Van filien, for Plaintiff in Error.
    “Negligence may be established, either by proof of the facts and circumstances attending the transaction, or by showing that the injury was done on a part of the road not enclosed by a lawful fence, or not on the crossing of a public highway.” (Calvert vs. Hannibal & St. Joe. E. E. Co. 38 Mo., 467.)
    This petition was drawn in accordance with the opinion of this court as expressed in the same case reported 34 Mo. 242.
    
      Dry den fy Dryden, for Defendant in Error.
   Wagner, Judge,

delivered the opinion of the court.

It is utterly impossible to sustain the judgment of the court below in this case. The petition alleged, that defendant negligently and carelessly ran over, maimed, and hilled, certain cattle belonging to the plaintiff, and that the same was done on a part of its road that Avas not enclosed by a lawful fence and that was not a public road crossing. At the trial the court refused to permit the plaintiff to introduce any evidence to sustain his averments, on the ground that the petition did not state a cause of action.

This ruling was certainly erroneous. The pleading set out a good cause of action and the judgment will be reversed and the case remanded.

The other Judges concur ; except Judge Sherwood, absent.  