Plaintiff recovered in the circuit court and defendant appeals. The petition is in three counts, under section 1105, Revised Statutes 1899. The first two counts allege the killing of certain animals owned by the plaintiff which had strayed upon the defendant’s track because of its failure to construct and maintain sufficient fences and cattle-guards as required by the statute. The killing of the animals occurred on different days, and therefore the separate counts contained in the petition. So much of the first count as is material is as follows:
“That said sow at said date strayed and went in and' upon the right of way occupied by the road of the defendant, at a point in LaFont township, county and State as aforesaid, where the defendant was by law required to erect and maintain lawful fences along the sides of its said road, and to construct sufficient cattle-guards, and not at a public road crossing, nor within the switch limits of any station, nor within the limits of an incorporated town or village; and where the said road of the defendant passes through, along or adjoining inclosed and cultivated lands and fields, or uninclosed lands; at and in the township, county and State first mentioned as aforesaid.
“That said sow strayed and went in and upon the track and grounds occupied by the railroad of the defendant, by reason of the failure and neglect of the defendant to erect and maintain lawful fences along the sides of. its said railroad, and its failure to construct sufficient cattle-guards where the said sow entered upon the same, as aforesaid.”
Thereafter follow allegations of collision by the locomotive and cars of defendant with the animal and a prayer for damages to cover the loss sustained, etc. The second count is substantially the same in this respect.
The first point made on the appeal is that inasmuch *132as the statute is in its nature penal, the petition should set out and define what is a lawful fence, to comport with the rule requiring strict procedure thereunder. It will be observed that the petition substantially follows and brings the case strictly within the provisions of the section of the statute referred to, by reciting every duty imposed on defendant thereby and the several elements of neglect on its part thereabout, and it is sufficient under the numerous decisions of both the appellate and the Supreme Courts. [Summers v. Railway, 29 Mo. App. 41; Duncan v. Railway, 91 Mo. 67, 3 S. W. 835; Chubbuck v. Railway, 77 Mo. 591.] And this is true under a long line of cases that could be cited in which such petitions have been approved, notwithstanding the fact in none of them was there an allegation particularizing what constituted a lawful fence within the meaning of our law.
The third count recites in substance the plaintiff owned a crop of corn growing on land adjacent to the railroad; that defendant failed to maintain lawful fences along the sides of its right of way where its road passed along enclosed fields and that by reason of this neglect on the part of defendant, the animal escaped from the right of way through said defective fence upon plaintiff’s field and destroyed his corn. The allegations contained in this count are sufficient in substance. They contain every element of liability against defendant for permitting the stock to escape from its right of way through the defective fence into the adjacent fields, which is a proper subject of action under the statute. [Kirkpatrick v. Railway, 120 Mo. App. 416, 96 S. W. 1036; Phillips v. Railway, 107 Mo. App. 203, 80 S. W. 926; Wilkerson v. Railway, 106 Mo. App. 336, 80 S. W. 308; Brannock v. Railway, 106 Mo. App. 379, 80 S. W. 699.] And this count is entirely sufficient, notwithstanding the fact that there is no allegation setting up the particulars of what is necessary to constitute a law*133ful fence within the meaning of another statute on fences and inclosures. The petition is sufficient and the assignment against it will he overruled.
2. The next point assigned for a reversal is that inasmuch as plaintiff failed to request any instructions on his part, the court declined to require him to do so and also declined to instruct the case from plaintiff’s standpoint on its own motion even though requested ore terms to do so by counsel representing defendant. This is the same point which has been ruled at this term in the case of Sowders v. Railroads, ante, p. 119, 104 S. W. 1122. What has been.said thereon is sufficient. The assignment will be overruled. The judgment is affirmed.
Bland, P. J., and Goode, J., concur.