84 Mo. 345 (Mo. 1884), Rhea v. St. Louis & S. F. Ry. Co.

Citation:84 Mo. 345
Opinion Judge:EWING, C.
Party Name:RHEA v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
Attorney:John O'Day for appellant. W. Cloud for respondent.
Court:Supreme Court of Missouri

Page 345

84 Mo. 345 (Mo. 1884)

RHEA

v.

THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884

Appeal from Lawrence Circuit Court. --HON. M. G. MCGREGOR, Judge.

REVERSED.

John O'Day for appellant.

It has been uniformly held by this court, that railroad companies are under no obligation to fence their track where it crosses the plat of a town, or city, and consequently they cannot be held liable under the provisions of section 809 of the Revised Statutes of 1879. Lloyd v. Pacific R. R., 49 Mo. 199; Cousins v. Railroad, 66 Mo. 572. " It is inaccurate to say that there is any obligation to fence imposed by section five of the damage act. We do not mean to say that fences can in no case be lawfully erected in towns and cities, but there is no law requiring them to be built." Edwards v. Railroad, 66 Mo. 567; Shultz v. Railroad, 76 Mo. 324; Rowland v. Railroad, 73 Mo. 679; Elliott v. Railroad, 66 Mo. 683; Wallace v. Railroad, 74 Mo. 594. Ells v. Railroad, 48 Mo. 231, might, if not carefully considered, be taken as an authority against this position, but that was an action brought under section five of the damage act, and any dicta therein to the contrary of the position herein asserted are expressly reversed by Edwards v. H. & St. J. R. R., supra. When animals are killed in towns and cities where fences have not been, but might lawfully be erected, the action should be brought under the fifth section of the damage act, which, in such cases, dispenses with the proof of negligence. Elliott v. R. R., 66 Mo. 683. The plaintiff, in this case, was bound to prove actual negligence, the injury having occurred within the limits of a corporate town. Wallace v. Ry. Co., 74 Mo. 597. An action cannot be brought under the 809th section of the Revised Statutes, and a recovery be had under the fifth section of the damage act. Cary v. R. R. Co., 60 Mo. 209; Wood v. R. R. Co., 58 Mo. 109; Edwards v. R. R. Co., 66 Mo. 567. It is not important where the animal was killed, the precise thing to be considered is, where did the animal get on the track?

W. Cloud for respondent.

EWING, C.

This was a suit to recover damages for killing stock, on the following agreed statement of facts: " That the appellant was, on the ____ day of June, 1881, a railroad corporation, operating a railroad through the township of Pierce, in the...

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