15 S.W. 320 (Mo. 1891), Perkins v. St. Louis, I.M. & S. Ry. Co.

Citation:15 S.W. 320, 103 Mo. 52
Opinion Judge:Black, J.
Party Name:Perkins v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:T. J. Portis and Silver & Brown for appellant. Moses Whybark for respondent.
Case Date:February 02, 1891
Court:Supreme Court of Missouri
 
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Page 320

15 S.W. 320 (Mo. 1891)

103 Mo. 52

Perkins

v.

The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from Bollinger Circuit Court. -- Hon. James D. Fox, Judge.

Reversed.

T. J. Portis and Silver & Brown for appellant.

(1) First. The burden was on plaintiff of bringing his case clearly within the provisions of the statute, and to make out a prima facie case of recovery. Reynolds v. Railroad, 85 Mo. 90; City v. Arnot, 94 Mo. 275. Second. The cow having been found on the outside of the railroad right of way, and it not appearing that she had been run or frightened by a passing train, or that she ran against defendant's fence, the demurrer to the evidence should have been sustained. Third. The cow having been found fastened in the fence on the outside of the right of way, no presumption arises that she was first on the right of way, and then, becoming frightened by a passing train, ran against the fence. Fourth. The statute, being in derogation of the common law, must be strictly construed. State v. Clinton, 67 Mo. 380. This is especially so if it is to be regarded as a penal one. Manz v. Railroad, 87 Mo. 278; Jackson v. Railroad, 87 Mo. 422; Parish v. Railroad, 63 Mo. 284; State v. Railroad, 19 Mo. 104. The evidence must be satisfactory, and it ought to be something more than the discovery of a dead cow on the outside of the railroad right of way with one foot fastened in the fence. State v. Hill, 96 Mo. 357. (2) First. The section of the statute giving plaintiff an attorney's fee if he prevails is a special law, and is unconstitutional. Const. of Mo., art. 2, sec. 53; Wilder v. Railroad, 14 W. Rep. (Mich.) 627; Schut v. Railroad, 14 W. Rep. (Mich.) 650; Board of Supervisors v. Cowan, 60 Miss. 876; Ragio v. State, 86 Tenn. 272; Durkee v. Janesville, 28 Wis. 468; Calder v. Bull, 3 Dallas, 387. Second. It is also violative of the provision of the federal constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws. Here particular corporations in a particular set of cases have a burden inflicted upon them to which other litigants are not subjected. Corporations are persons within the equal protection of the law within the constitution. Santa Clara County v. Railroad, 118 U.S. 394.

Moses Whybark for respondent.

The taxation of an attorney's fee as costs is sanctioned in a number of cases. R. S. 1889, secs. 508, 2611, 4981, 5239, 7182, 7681, 7746; State ex rel. v. Railroad, 78 Mo. 575; Treasurer of Asylum v. Douglas, 77 Mo. 647. Costs are governed by statute. What shall be taxed as costs is with the legislature. Waters v. Waters. 49 Mo. 385; State v. Wear, 54 Mo. 531. The constitution does not prohibit the taxation of an attorney's fee as costs. Cass County v. Jack, 49 Mo. 196. The act of 1885 is not special. It relates to a class and not to an individual of that class. State ex rel. v. Tolle, 71 Mo. 645; Humes v...

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