Boyle v. Missouri Pac. Ry. Co.

• Decision Date: 05 April 1886
• Parties: THOMAS BOYLE, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

21 Mo.App. 416

THOMAS BOYLE, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

April 5, 1886

APPEAL from Lafayette Circuit Court, HON. JOHN P. STROTHER, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action to recover single damages for killing plaintiff's cow. Suit was begun in a justice's court and tried on appeal in the circuit court. The statement contained two counts. As the court directed a finding for the defendant on the first count, and the plaintiff recovered on the second, it is only necessary to consider the latter.

Omitting the formal averments, the statement alleges, in substance that on or about February 4, 1885, in Lexington township Lafayette county, defendant, by its servants, agents, etc., while running its locomotive and cars upon its road in said township, and at a point therein where its road was not inclosed with a lawful fence, and not in the crossing of any public highway, by and through the carelessness and negligence of defendant, ran the same over and against a large cow of plaintiff of the value of one hundred dollars, and killed said cow, whereby, etc.

Plaintiff's evidence tended to show that at the point where the accident occurred there was no fence; and there is evidence that the point was such where defendant might lawfully have erected and maintained a fence. There was no other proof of negligence on the part of defendant occasioning the injury.

The plaintiff stated and admitted that he turned and permitted his cow to run upon the commons in and about the point where she was injured.

" It was admitted by the parties to this cause that an act entitled ‘ an act to restrain domestic animals from running at large,’ approved March 27, 1883, found on pages twenty-six to twenty-eight, inclusive, of the session acts of Missouri of 1883, concerning stock running at large, had been adopted by the voters of Lafayette county (the county in which the damage herein sued for occurred), on the ____ day of November, 1884, which was prior to the happening of the injuries, and that said act was in full force in said county at the time of the happening of the injury herein complained of."

At the close of the evidence the defendant prayed the court to instruct the jury as follows:

" At the close of all the evidence the court instructs the jury that under the pleadings and evidence in this cause the plaintiff is not entitled to recover, and your verdict must be for the defendant."

The court refused to so instruct the jury; but, at the instance of the plaintiff, gave the following declaration of law:

" The court instructs the jnry that if they believe from the evidence that plaintiff's cow was, on the fourth day of February, 1885, run against and struck by the cars, locomotives or other carriages used on the railroad of said defendant and thereby killed or injured, from the result of which injuries she died or was rendered valueless and killed, and that said cow got upon said track and was so killed or injured at a point on said railroad that was not enclosed by a lawful fence, nor in the crossing of a public highway, they will find for the plaintiff under the second count of plaintiff's petition, and assess his damages at such a sum as they may believe from the evidence was the reasonable market value of said cow at the time she was so injured or killed. The jury will find for the defendant upon the first count of the petition. If you find for the plaintiff upon the second count you will so state."

The jury returned a verdict for plaintiff on the second count, assessing the value of the cow at fifty-five dollars. From the judgment thereon the defendant prosecutes this appeal.

ADAMS & BOWLES, for the appellant.

I. Where the petition alleges certain acts of negligence, as causing an injury, and the proof does not support such allegations, the court should direct a verdict for defendant. Link v. Vaughn, 17 Mo. 585; Edwards v. Giboney, 51 Mo. 129; Haines v. Railroad, 41 Iowa 227.

II. It is the point of entry, and not the place of injury, that makes a cause of action for failure to fence. Moore v. Railroad, 81 Mo. 499; Rowland v. Railroad, 73 Mo. 619; Cunningham v. Railroad, 70 Mo. 202.

III. Plaintiff having voluntarily permitted his cow to run at large, in violation of the act making it unlawful for domestic animals to run at large outside the enclosure of the owner (Sess. Acts, 1883, pp. 26, 28), cannot now complain of defendant for an injury brought about by his own unlawful act. Railroad v. Lea, 20 Kansas 253; Bowman v. Railroad, 85 Mo. 533; Railroad v. Champ, 75 Ill. 577; Wilder v. Railroad, 65 Me. 553; Railroad v. Methven, 21 Ohio St. 586; Pitzner v. Shinnick, 39 Wis. 129; Railroad v. Lamborn, 12 Md. 257; Giles v. Railroad, 55 N.H. 552; Darling v. Railroad, 121 Mass. 118; Bemis v. Railroad, 42 Vt. 375; Hance v. Railroad, 26 N.Y. 428; Walsh v. Railroad, 8 Nev. 110.

IV. The law of this state has long been well settled that for the owner to recover damages of a railroad company for killing stock upon its track, it is incumbent upon him to show that his stock is rightfully upon the land adjoining the railroad track from which they entered thereon. Harrington v. Railroad, 71 Mo. 384, Berry v. Railroad, 65 Mo. 172; Johnson v. Railroad, 86 Mo.--

V. Where the negligence of the plaintiff contributes to produce an injury, it thereby defeats a recovery Ellis v. Railroad, 55 Mo. 278; Bowman v. Railroad, 85 Mo. 533.

GRAVES & AULL, for the respondent.

I. Under section 2124 plaintiff was not required to prove any negligence on part of defendant; and it matters not if the highest care was exercised by the agents of the railroad, if the road was not fenced as required by law, defendant is responsible for damages resulting therefrom. Powell v. Railroad, 35 Mo. 457; Young v. Railroad, 79 Mo. 336; Nall v. Railroad, 59 Mo. 112.

II. Nor was it unlawful for plaintiff to permit his cow to run at large, prior to the act of 1883, nor was it negligence upon his part. Gorman v. Railroad, 29 Mo. 441; McPheeters v. Railroad, 45 Mo. 22; Turner v. Railroad, 78 Mo. 578.

III. The proviso in section five, of the act of 1883, leaves plaintiff in the same position as he was prior to said act, and defendant's obligations are not lessened nor interfered with. But regardless of the above exception as to railroads plaintiff would be entitled to recover, even though said section five had been omitted. Krebs v. Minneapolis, etc., Railroad, 21 N.W. 131; Lee v. Railroad, 23 N.W. 299; Burlington v. Franzea 18 N.W. 511; C., B. & Q. Railroad v. Sims, 24 N.W. 388; Atchison, etc., Ry. Co. v. Shaft, 6 P. 908.

PHILIPS P. J.

I. The statement in this case, on which the judgment was rendered, fails to state facts sufficient to constitute a cause of action. It is not averred that the place where the cow went upon the railroad track was where defendant may have inclosed the road with a lawful fence. It is only averred that the road " was not inclosed with a lawful fence." This is not sufficient. Russell v. Ry. Co., 83 Mo. 507. The demurrer to the pleadings and evidence, interposed by defendant, should, therefore, have been sustained.

II. As such defect in the statement is amendable, and would likely be corrected on remanding the cause, it is proper and just to the parties that another question, of controlling importance, raised on this appeal should now be considered and determined.

Appellant contends that as this is an action, in common form, for the recovery of single damages predicated of the negligence of defendant, the doctrine of contributory negligence on the part of the plaintiff is applicable; and that as the only negligence chargeable or claimed against the defendant is its omission to have fenced where it might have fenced, and as the plaintiff confessedly was acting in violation of a public statute forbidding him to so turn his cow upon the commons, he himself was such wrong doer, contributing directly to his own injury, on principle, he ought not to recover. We confess there is much of justice and reason to support this contention, and it presents a question not free from embarrassment under our statute laws.

Prior to the enactment of the statute of 1883 (Laws of Mo. 1883, pp. 26-28), the law was settled, by repeated decisions, that it was not contributory negligence for the citizen to turn his stock upon the commons in the vicinity of a railroad, although he knew at the time the road was not fenced at that point. Gorman v. Ry. Co., 26 Mo. 441; Turner v. Ry. Co., 78 Mo. 578; Davis v. Ry. Co., 19 Mo.App. 425.

By the act of 1883, supra, section one, it is declared to be unlawful for the owner of any animal or animals, of the species of horse, mule, ass, cattle, swine, sheep, or goats, in this state, to permit the same to run at large outside the inclosure of the owner of such stock. The statute authorizes any person, finding such animals running at large, to take them up and restrain them, and they may be treated as strays; and the owner shall be answerable for all damages done to any person by reason of such animals running at large. Section five of the act declares that: " It shall not be necessary for any person to fence against any of the species of domestic animals enumerated in this chapter, and it shall be no defence to any action or proceeding brought or had, that the party taking up such stock did not have his lands inclosed with a lawful fence; but nothing herein contained shall be construed to lessen or interfere with the obligations of the several railroads in this state to fence the right of way of such railroads, as is now provided by law."

This statute, as applied to the state of facts presented in this record, does...