Meyer v. North Missouri R.R. Co.

• Decision Date: 31 October 1864
• Parties: JOHN MEYER, Respondent, v. NORTH MISSOURI RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

35 Mo. 352

JOHN MEYER, Respondent,

v.NORTH MISSOURI RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. Louis Law Commissioner's Court.

N. Holmes, for appellant.

I. Admitting that the scope and intent of the statute concerning “Damages” (R. C. 1855, p. 649, § 5) are broad enough to change the general rule of law, and include cities with their streets and squares, as well as country districts with their “enclosed fields” and “public roads,” it is contended that this case comes within the exception of “any public highway” crossing, both in respect of the legal acceptation of the words, and in accordance with the general intent and policy of the act. (3 Com. Dig. 27; 2 Black. 35 & n. 28.) A highway may be created by the owner in fee dedicating it to public use. (11 East. 375 & n.) A public street is, to all intents and purposes, a public highway. (3 Crui. Dig., Greenl., 85.) A plat of a city addition duly acknowledged and recorded, is a dedication sufficient to constitute a street. (R. C. 1855, p. 1536, § 8; City of Hannibal v. Draper, 15 Mo. 634.) The provisions of the statutes with regard to fences, cattle-guards, sign-boards, signals, and crossings, make a distinction between city and country. R. C. 1855, p. 436: § 47, as to signals; § 48, sign-boards on crossings are not required in cities, unless the city officers demand them; Id. § 52, requiring “fences” where the road passes through “enclosed fields” and “cattle-guards” at the “road crossings,” is by its terms confined to the country, and does not extend to cities, street crossings, and town squares--p. 437. No one of the special charter acts of this company expressly requires them to fence their road anywhere, but by § 11 of the act of 3d March, 1851, they are expressly authorized to build their road “along or across any street of any town or city.”

Statutes requiring cattle-guards at “road crossings,” do not extend to street crossings. (Vanderkar v. Raenslaer & Sar. R., 13 Barb. 390.) So the statute (R. C. 1855, p. 437, § 52) requiring fences through “enclosed fields” and cattle-guards at “road crossings,” does not extend to streets and squares in cities. The language of the act concerning “Damages,” (§ 5) would seem to have reference to the country rather than the city. Streets and squares are not especially named. The spirit and purview of the act seem to be, that when the killing takes place on a portion of the road where the company are required to have fences and cattle-guards, “a lawful fence,” and do not, then they shall be liable without any proof of negligence, otherwise.

But in cities where no fences and cattle-guards are required by statute, it is not intended that the company shall be liable without such proof; and by express exception, not “at the crossing of any public highway;” and the burden of proof is upon the plaintiff. (Brown v. Hannibal and St. Joseph Railroad, 33 Mo. 309; Quick v. Id. 31 Mo. 199, 407; Redf. Railw. 375; Id. & n. 5.) At common law every man was bound to keep his cattle on his own premises, and where no statute requires the company to fence, the owner of cattle is bound to keep them off the road.

The general rule of law is, that “animals wandering upon the track of an unenclosed railroad are strictly trespassers,” and the company is not liable for killing them unless “guilty of wilful negligence, evincing reckless misconduct.” (Redf. Railw. 375 & n. 5; Illinois Cent. R. R. v. Reedy, 17 Ill. 580; Central Mich. R. R. v. Rockafellow, 17 Ill. 541; Munger v. Towanda, 4 Comst. 349.) No one can recover for an injury, of which his own negligence was in whole, or in part, the proximate cause. (Redf. Railw. 330, § 150; 4 Comst. 349.)

It is said this was not a street-crossing, because the street was not improved and travelled. The question is to be governed by the statutes and the law, and unless these make a difference in this respect and in reference to this liability without proof of negligence, the court can make none. In contemplation of law, this was a street-crossing, and “a crossing of a public highway.” The company had no right and were not bound to fence up their track through this city addition, and certainly not to fence up ground dedicated to public use as a street. If the city authorities did not see fit to improve this street, that was not the fault of the company. If the public did not travel this street, that is no fault of the company. It might be improved and travelled any day, and if the company had obstructed it with fences, they might have rendered themselves liable for damages.J. G. Woerner, for respondent.

I. The instruction asked by the defendant below was properly refused. It is based upon the assumption that the...