Trice v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 29 February 1872
• Citation: 49 Mo. 438
• Court: Missouri Supreme Court
• Parties: TANDY H. TRICE, Respondent, v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

49 Mo. 438

TANDY H. TRICE, Respondent,

v.HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Macon Court of Common Pleas.

Carr, and Hall & Oliver, for appellant.

I. While it is conceded that the State has the right, by virtue of its authority, to make police regulations, to require the appellant to erect and maintain a fence on each side of its railroad, still, under the pretense of doing this, the State has no constitutional right or authority to pass a law requiring the appellant to erect and maintain fences, where its railroad passes through cultivated fields, to protect the crops growing in such fields. The former would be the exercise of proper and legitimate authority; the latter would be the exercise of arbitrary and unconstitutional power. It would be taking the money, to which appellant has a vested right, out of its treasury, and applying such money to the erection and maintenance of a fence for the private use and benefit of the proprietor or owner of the adjoining land. The former is done for the protection and safety of the passengers carried and of the property shipped over the appellant's railroad, and not for the protection and safety of the crops growing on the adjoining land. The Legislature has authority only to pass laws for the protection and safety of passengers carried and property shipped over the appellant's railroad. The respondent was neither a passenger nor a shipper; hence he has no right to complain of the failure of appellant to erect and maintain a fence along the side of his fields.

II. Even if the court shall be of opinion that it was the legal duty of appellant to erect and maintain a fence between the fields in controversy and its railroad, still it was the duty of the respondent to have erected and maintained half of the division fence between them. There is no allegation that respondent performed this duty. (11 Wend. 47; Wagn. Stat., ch. 57; 4 Paige, 553.) Moreover, the respondent was authorized, by the very section of the statute upon which he bases his suit, to have erected said fence, and to sue the appellant for the cost thereof if it neglected or refused to erect such fence in three months after the completion of its railroad. The pleadings show that the railroad had been completed long prior to the alleged injury. The common law imposed upon him the obligation to protect himself if he could do so by a reasonable effort. There is no allegation that he either availed himself of the right conferred on him by the statute, or that he endeavored to protect himself from damage by reasonable effort. (Wagn. Stat., ch. 37, art. II, § 43; 18 Mo. 362; 44 Mo. 302, 436.) The respondent, then, was guilty of such contributory negligence as to bar him from recovering. (4 N. Y. 349; 14 Barb. 364; 1 Allan, 493; 2 Cush. 536.)

Dysart & Brown, for respondent.

Acts like the one under consideration are not unconstitutional, and not inconsistent with appellant's charter. (See Gorman v. Pacific R.R. Co., 26 Mo. 441; Clark's Adm'r v. Hann & St. Jo. R.R. Co., 36 Mo. 219; Wagn. Stat. 312, § 48.)

BLISS, Judge, delivered the opinion of the court.

The pleadings show that defendant's railroad passes through the cultivated fields of the plaintiff; that defendant failed to fence its road, and, in consequence, cattle strayed from the road upon said cultivated fields and destroyed the plaintiff's crops. The cause was submitted to a jury, who returned a verdict for the damages suffered, and the court rendered judgment...