Rhea v. St. Louis & San Francisco Ry. Co.
Decision Date | 31 October 1884 |
Citation | 84 Mo. 345 |
Parties | RHEA v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant. |
Court | Missouri Supreme Court |
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. 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.
This was a suit to recover damages for killing stock, on the following agreed statement of facts:
The court, on the above facts, rendered judgment for respondent in the sum of one hundred dollars, being double the value of said cow, from which judgment the defendant appealed to this court.
The questions involved in this case were thoroughly considered in the case of Edwards v. H. & St. Jo. R. R. Co., 66 Mo. 567, and definitely settled. There, it was held that section 809, Revised Statutes, 1879, does not require railroad companies to erect and maintain fences within the limits of incorporated...
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