Burton v. North Missouri R.R.

• Citation: 30 Mo. 372
• Parties: BURTON, Defendant in Error, v. NORTH MISSOURI RAILROAD, Plaintiff in Error.
• Decision Date: 31 July 1860
• Court: Missouri Supreme Court

30 Mo. 372

BURTON, Defendant in Error,

v.NORTH MISSOURI RAILROAD, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1860.

1. If horses or animals are killed or injured by the cars, locomotives or other carriages used on a railroad, and the accident does not occur at a crossing of a highway or on a portion of the road enclosed by a fence, the railroad company will be liable for such injury, under the fifth section of the act approved December 12, 1855, (R. C. 1855, p. 649), irrespective of any question of negligence, unskilfulness or misconduct on the part of the officers, servants, or agents of such company.

2. This liability extends to railroad companies, whether the fifty-second section of the general railroad act (R. C. 1855, p. 437) applies to such road or not.

Error to Macon Circuit Court.

The plaintiff seeks in this action to recover damages for the loss of two horses caused by their being run over by the cars of the defendant, the North Missouri Railroad Company. The plaintiff alleges in his petition that the accident occurred at a place where the road was not enclosed by a lawful fence; that it did not occur at a crossing of a public highway. The evidence adduced showed that at the place where the accident occurred the road was not enclosed by a fence. It was near a crossing of a state road, about seventy or eighty feet beyond it. The court refused declarations of law asked by the defendant, basing the liability of the latter on the issue of negligence.

The court found for plaintiff.

Carr, for plaintiff in error.

I. The court erred in overruling the demurrer to the amended petition. The petition is designed to be drawn in such a manner as to comprehend parts of two different statutes. (R. C. 1855, p. ___, ch. 39, § 52; Id. ch. 51, § 5.) It fails in comprehending either. It should follow the language of the statute and conclude against the form of the statute. (8 Mo. 350; 17 Mo. 375.) It is not averred that the horses were crippled through the negligence, unskilfulness or misconduct of the officers, &c., of the company. It is not shown that where the crippling was done was in a part of the road passing through enclosed fields, so as to bring it within the purview of the fifty-second section of the general railroad act. It is not a petition for trespass at common law. (See 29 Mo. 167; 28 Mo. 30, 335.) The said fifty-second section is only applicable to companies formed under said act, not to the defendant.

II. The court erred in refusing the declarations of law asked on behalf of defendant. They were applicable to the facts in evidence. The fifth section merely shifts the burden of proving negligence. The railroad company may show that there was no negligence, unskilfulness, or misconduct. The company could not fence at this crossing of the state road, and thus keep out stock. (6 Indiana, 141; 8 Id. 402.) The court erred in finding a general verdict. The issues should have been specially found. (Ewing v. Seaton, 17 Mo. 465; 6 Mo. 50; 9 Mo. 624.) There was no evidence of the amount of damages sustained.

Ryland and Prewitt, for defendant in error.

I. The declaration is sufficient. It would have been sufficient to charge that defendant injured plaintiff's horses by running over them with the cars and giving the value of the horses and the injury. That would be a good declaration in case of trespass under our old practice. The statute only changes the proof necessary for plaintiff to recover, with a proviso that the section shall not apply to certain cases. (R. C. 1855, p. 49, § 5.) Now the petition goes on and negatives these exceptions, which was more particular than was necessary, except in indictments charging crimes created by a statute, where the books say that if it is in the same section it must be negatived, but if in another following that one, the defendant must plead the exception.

II. The instructions asked by defendant were all given as appears by the mark on the margin of each one, at least all that are in the record were given and are so marked on the margin. It devolves on the plaintiff in error to show beyond equivocation, that the matters assigned by him as error, and of which he complains, were ruled against him in the lower court. All the instructions asked ought to have been refused. Not one contains all the qualifications of care and diligence required by the law to discharge defendant. (Gorman v. Pacific Railroad Co., 26 Mo. 441; R. C. 1855, p. 649, § 5.) The statute is repealed requiring a judge to find a special verdict.

NAPTON, Judge, delivered the opinion of the court.

The fifth section of the statute concerning damages in the revised code of 1855 provides that “when any animal or animals shall be killed or injured...