60 Mo. 405 (Mo. 1875), Gerren v. The Hannibal & St. Joe R. R. Co.

Citation:60 Mo. 405
Opinion Judge:VORIES, Judge.
Party Name:L. C. GERREN, Plaintiff in Error, v. THE HANN. & ST. JOE. R. R. CO., Defendant in Error.
Attorney:Mullins & Burgess, for Plaintiff in Error. Carr & Leach, for Defendant in Error.
Court:Supreme Court of Missouri
 
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Page 405

60 Mo. 405 (Mo. 1875)

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 Ill. 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.

OPINION

VORIES, Judge.

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...

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