Gerren v. Hann. & St. Joe. R.R. Co.

• Decision Date: 31 May 1875
• Court: Missouri Supreme Court
• Parties: L. C. GERREN, Plaintiff in Error, v. THE HANN. & ST. JOE. R. R. CO., Defendant in Error.

60 Mo. 405

L. C. GERREN, Plaintiff in Error,

v.THE HANN. & ST. JOE. R. R. CO., Defendant in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Linn Circuit Court.

Mullins & Burgess, for Plaintiff in Error.

I. Meadville was not incorporated, nor were the stock killed at a public crossing or highway, but were killed where the road was not fenced. (Iba vs. The Hann. & St. Joe. R. R. Co., 45 Mo., 472, 473; Wagn. Stat., 310, 311, § 43.)

II. Plaintiff's cause of action was not barred at the time of the commencement of this suit. (Wagn. Stat., 919, § 19; Shaw vs. Pershing 57 Mo., 416.)

Carr & Leach, for Defendant in Error.

I. Defendant was under no legal obligation to fence its track where plaintiff's stock was killed, viz: in the town of Meadville. (Meyer vs. I. M. R. R., 35 Mo., 352; Lloyd v. Pac. R. R., 49 Mo., 199; Iba vs. Hann. & St. Joe. R. R., 45 Mo., 473; Ellis. vs. Pac. R. R., 48 Mo., 232; Wagn. Stat., § 43, art. II, ch. 37; Hallman vs. R. R., 2 E. D. Smith, 257; Bowman vs. R. R., 37 Barb., 516; Ill. Cent. R. R. vs. Goodwin, 30 Ind., 117; Great W. R. R. vs. Morthland, 30 Ills., 451; Galena & C. R. R. vs. Griffi 31 Ill., 303; Wier vs. St. L. & I. M. R. R. Co., 48 Mo., 558; Lloyd vs. Pac. R. R. Co., 49 Mo., 20.) The case of Iba vs. Hann. & St. Joe. R. R. Co., 45 Mo., 472-3, cited by plaintiff's counsel is not a parallel case. Iba's cow was killed in a town made such only by a paper plat; and no streets were near where the accident happened. In the case at bar, all of plaintiff's stock was killed between streets, and these streets crossed the railroad at right angles and were used daily by the public.

II. The action was not commenced within one year after the cause accrued. (Wagn. Stat., 521, ch. 43, § 6; Kennedy vs. Burrier, 36 Mo., 128; Coover vs. Moore, 31 Mo., 574.)

III. Plaintiff took a voluntary non-suit which act did not stop the statute of limitation from running. (Riddlesbarger vs. Hartf. Ins. Co., 7 Wal., 386.)

The renewal of the suit within one year after taking the voluntary non-suit is not within the intent of § 19 of the statute of limitations. The word “suffers” implies ex vi termini, an involuntary non-suit. Any other construction would permit an endless repetition of lawsuits.

VORIES, Judge, delivered the opinion of the court.

This action was brought before a justice of the peace, on the 20th day of July, 1872, under the fifth section of the act of the General Assembly concerning “Damages and Contributions” to recover damages for the killing of certain stock of plaintiff, by the cars used on the defendant's railroad, at a point on said railroad where the same was not fenced.

The section of the statute under which the action was brought is as follows: “§ 5. When any animal or animals shall be killed or injured by the cars, locomotive or other carriage, used on any railroad in this State, the owner of such animal may recover the value thereof, in an action against the company or corporation running snch railroad, without any proof of negligence, unskillfulness or misconduct, on the part of the officers, servants or agents of such company; but this section shall not apply to any accident occurring on any portion of such road that may be inclosed by a lawful fence, or in the crossing of any public highway.”

The sixth section of the act provides that “every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of such action shall accrue.” (Wagn. Stat., 520.)

The cause of action filed by the plaintiff before the justice has four counts: one for the value of a cow alleged to have been killed by the defendant on the 8th day of May, 1871; one for the value of two hogs; and the other two counts each for the value of one hog killed on different days, the last killing being charged to have been done on the 13th day of June, 1871. This suit was commenced in July 1872.

The different counts in the petition were in the usual form, and bring the cause of action stated within the language of the statute.

The plaintiff recovered a judgment before the justice for $37. From this judgment the defendant appealed to the Linn Circuit Court, where, upon a trial, a new judgment was rendered in favor of the defendant.

The plaintiff filed a motion for a new trial setting forth the usual causes. The court overruled said motion and rendered a final judgment in favor of the defendant.

To this action of the court the plaintiff excepted and filed his bill of exceptions and has appealed to this court.

It is shown by the evidence in the case that at the time named in the petition, at the town of Meadville, a locomotive and train of cars belonging to defendant, when approaching the defendant's depot at said town from the east, ran over and killed a cow belonging to the plaintiff worth twenty dollars; that the cow was killed at a point on defendant's railroad, about eighty yards east of the defendant's depot at said town, and where the road was not fenced. The cow was killed in the day time by a passenger train; that there was no street or public crossing where the cow was killed.

The evidence further shows that the part of the town where the cow was killed was laid off into streets, blocks and lots, and that the town contained about three or four hundred inhabitants.

The same evidence was given in reference to the killing of the hogs named in the three other counts in the petition, except that the hogs were killed a short distance east of the place where the cow was killed, and that the last of the hogs was killed on the 13th of June, 1871, and that all were killed within the town limits of the town of Meadville, and that the town had never been incorporated.

It was admitted by the defendant, by its attorney, that within six months after the cow and hogs were killed, plaintiff commenced his suit against defendant before E. D. Harvey, a justice of the peace, within and for Parson's Creek Township, Linn County, Missouri, for damages for killing said stock, and that after judgment the case was taken by appeal to the Common Pleas Court of Linn county, and that at the May Term of said court, for the year 1871, plaintiff took a voluntary non-suit.

At the close of the evidence the plaintiff asked the court to give the jury the following instruction: “If the jury believe from the evidence that defendant, by its servants or agents, ran its engines or cars over, on, to or against plaintiff's cow and killed her at Parson Creek Township, in Linn County, Missouri, at a point on its road where the same was not fenced, and where there was no public street or crossing, they are bound to find for the plaintiff on the first connt in the complaint; and in this case it makes no difference whether the cow was killed in the town of Meadville or not, provided they further believe that said town was not incorporated at that time.”

A similar instruction to the one just copied was asked for as to the three other counts in the plaintiff's cause of action. All of these instructions were refused by the court and the plaintiff excepted.

The court then at the request of the defendant, instructed the jury as follows: “1st. If the jury believe from the evidence that the stock sued for was killed in the town of Meadville, where the adjacent land is laid out into blocks, lots, streets and alleys; that said streets cross the railroad at right angles, and that said stock was killed...