Donovan v. Hannibal & St. J. R. Co.

• Decision Date: 07 June 1886
• Citation: 1 S.W. 232,89 Mo. 147
• Court: Missouri Supreme Court
• Parties: DONOVAN and others v. HANNIBAL & ST. J. R. CO.

1 S.W. 232

89 Mo. 147

DONOVAN and others v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri.

June 7, 1886.

1. RAILROAD COMPANIES — FENCES — NEGLIGENCE.

Under the laws of Missouri (Revision 1879, § 806) the failure of a railway company to fence its track is of itself negligence, and makes the corporation liable in double damages.¹

2. SAME — CONTRIBUTORY NEGLIGENCE.

The owner of land adjoining a railway track which has not been fenced is not guilty of contributory negligence in pasturing his cattle on such land.

3. SAME — PLEADING — EVIDENCE.

Contributory negligence is a matter of defense, which must be specially pleaded, or no evidence relating thereto is admissible.

Appeal from Buchanan circuit court.

Action to recover double damages for injuries done to plaintiffs' live-stock by defendant's cars, the track not being fenced. Verdict and judgment for plaintiffs, and appeal therefrom by defendant.

Doniphan & Reed, for respondents, John Donovan and others. Strong & Mosman, for appellant, Hannibal & St. J. R. Co.

BLACK, J.

This is a suit for double damages, under section 809, Rev. St., for injuries to cattle. The facts disclosed on the trial are as follows: Defendant's road runs through a farm owned by the plaintiff Donovan. He inclosed 50 acres by building a fence on three sides, the railroad constituting the fourth side. Before erecting the fence he notified defendant of his intention, and requested its proper agents to fence the road, stating at the same time that the land was lower than the track, and if it should rain his cattle would go upon the road. He made a like request after the fence had been completed, saying then that the grass was going to waste. He at the same time offered to build the fence for defendant, at its cost, but this proposition was rejected, the agent saying that they were better prepared to build fences than plaintiff. The agent then, as he had before, promised to make the fence. From two to four weeks later Donovan and McKinley, the other plaintiff, turned some 40 head, of their cattle on the pasture. A son of one of the plaintiffs paid some attention to the cattle for a time, keeping them off the road. On the night of the third day that the cattle were in the pasture it rained, and they then went on the road, and six or eight were damaged by the defendant's cars running upon them.

The many constitutional questions as to the validity of section 809 raised in the trial court, and preserved in the record, have been so often ruled against the appellant that further notice need not be taken of them.

The defendant offered no evidence, but asked the following instruction, which was refused: "The jury are instructed that if the evidence shows that if the plaintiff turned his said stock into his lot, where they were injured, knowing that locomotives and trains of cars were running at all hours of the day and night on the defendant's railroad track, and knew that said track crossed his said lot, and that no fence of any kind was on either side of the railroad track, and that such locomotives could not be operated on said track without running near said animals, and that said animals were in danger of receiving injury from such...