On motion for rehearing.
Pee Cheiam.It is assigned, first, as ground, for granting a rehearing herein, that the court erred in overruling respondent’s motion to dismiss the appeal on the ground that appellant had failed to file an assignment of errors. That motion was denied because as a matter of fact appellant did file an assignment of errors on and. before the cause was submitted, and on the same day it was set for hearing, it being the first day of the term on which the case was set for hearing on the docket. This-was sufficient. Rev. Stat., sec. 3764.
It is next assigned as ground for granting a rehearing that the opinion of the court is contrary to the provisions of section 810, Revised Statutes, as amended in-1883. Laws, Mo. 1883, pp. 50, 51. The amendment presumably referred to is the provision which requires railroad companies to cause dead and dry vegetation and undergrowth upon their right of way to be cleared off and burned, and making the companies liable for all damages done by the neglect of such duty. It is a sufficient answer to this suggestion to say, that the action is not predicated of this statute. It is based on the negligence of defendant in operating its railroad with defective machinery and carelessly and negligently setting fire to plaintiff’s fences and meadow. It could not be maintained seriously, we presume, by counsel that under this petition he could recover judgment by merely proving the fact that grass, etc., remained upon defendant’» right of way. This is too clear to require any citation of authorities.
We might with propriety have reversed this cause-without remanding it; but concluded to remand the same to enable plaintiff, if he could, to supply the essential proofs. The motion is denied.