Berry v. St. Louis, Salem & Little Rock R.R. Co.

• Decision Date: 30 April 1877
• Citation: 65 Mo. 172
• Parties: BERRY v. ST. LOUIS, SALEM & LITTLE ROCK R. R. CO, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 172

BERRY

v.ST. LOUIS, SALEM & LITTLE ROCK R. R. CO, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Crawford Circuit Court.--HON. V. B. HILL, Judge.

N. G. Clark for appellant.

The defendant should have been permitted to prove that the ox killed was trespassing in the field of Conger at the time he was driven or ran upon the track of defendant's road. See 1st Redfield on Railways, Sec. 3, page 486. Ells v. Pacific R. R. Co., 55 Mo., and authorities cited.Lay & Belch for appellant.

The statutory requirement that the company shall fence where the track passes through, along or adjoining enclosed or cultivated fields, was manifestly for the benefit of the adjoining land owners, whose stock, without fences and cattle guards, might escape from their fields and come upon the railroad track. Hence the section also provides that the company shall maintain “farm-crossings of the road for the use of the proprietors or owners of the land adjoining such railroad.” This “farm-crossing” then, on Conger's farm, was for his use by the terms of the law itself. It is contended on the other side, however, that it was for the use also of the plaintiff, in order that his steer while trespassing on the crops of his neighbors on one side of the road might have a safe and convenient crossing of the railroad to prey upon other crops on the other side. There can be neither law nor reason in such a proposition. See 1 Redf. Rwys, 519, et. seq.

HENRY, J.

This was a suit before a justice of the peace to recover damages for the killing of a steer by a train of defendant's cars, in August, 1874. There was a judgment against defendant in the justice's court from which it appealed to the circuit court, where, on a trial anew, plaintiff again had judgment, from which defendant has appealed to this court.

The facts, as disclosed by the evidence, were that plaintiff's steer got into the field of one Conger, through which the road of defendant passed, and that, in attempting to drive it from the field, it went on to defendant's track through a gap in the railroad fence left open by Conger for his accommodation in passing from one side of his field to the other, with consent of defendant. There was no evidence showing how the steer got into Conger's field. Conger testified, that outside his field, a few yards from his fence, the railroad fence was often down, and, when up, was not a lawful fence; but nothing is stated by him, or any other witness, to show any connection between that condition of the fence and the steer's getting into the field, and if, as in the absence of evidence we shall assume, the cattle guards where the road left his field were in proper condition, the height or strength of the railroad fence outside of the field is wholly immaterial. The court, at the instance of plaintiff, gave the following instructions: 1. If defendant, where its road ran through enclosed or cultivated lands, left a gap in its fence, unprotected with cattle guards, such neglect was sufficient to entitle plaintiff to recover, although such failure might have been upon an agreement with the owner of the land; 2. If the steer was killed by the engine and cars of defendant, and such steer got on the road of defendant at a point where there was not a sufficient fence along such road, the jury will find for plaintiff in the sum they think the steer worth, at the time of the killing.

Defendant asked the following, which was refused: If they believe, from the evidence, that plaintiff's ox was trespassing in the field of O. B. Conger, and that defendant's road was fenced on the sides of the road where it passed through said field, and plaintiff's ox got on the...