Calvert v. Hannibal & St. Joseph R.R. Co.
| Decision Date | 31 October 1863 |
| Citation | 34 Mo. 242 |
| Parties | JOHN R. CALVERT, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Shelby Circuit Court.
The petition was as follows:
Plaintiff states that defendant is a corporation created by an act of the General Assembly of the State of Missouri, entitled “An act to incorporate the Hannibal and St. Joseph Railroad Company,” approved February 16, 1847; and as such did, on or about the 15th day of April, 1859, in the county of Shelby aforesaid, by their agents, servants, locomotives and railroad cars, negligently and carelessly run over, maim and kill, certain cattle belonging to plaintiff, to-wit, one cow of the value of twenty-five dollars, and one heifer of the value of ten dollars; for which he asks judgment.
Lipscomb and Carr, for appellant.
I. The petition does not show any legal cause of action against the appellant. It does not show that the stock sued for was not killed on a part of the railroad not enclosed in a lawful fence, nor does it show that it was not killed in the crossing of a public highway, so as to relieve the respondent of proof of actual negligence or carelessness. (Brown v. The Hannibal & St. Joseph R.R. Co. 33 Mo.)
II. But if the petition be held sufficient, then the evidence is not sufficient to sustain the petition.
Pratt and Benjamin, for respondent.
This was an action by plaintiff against the railroad for killing stock upon the line of its track.
The evidence shows that the cattle were killed upon an unenclosed part of the railroad, in Shelby county.
The railroad seems willing to contest all actions for killing stock, assuming that negligence on the part of the agents must be shown to entitle the plaintiff to recover under the railroad law. (R. C. 1855, p. 487, § 52.) This law only applies to enclosed fields, and excuses them if their railroad is lawfully fenced from the penalties imposed by the General Railroad Law.
The law of Missouri requires the railroads to fence their roads with a lawful fence. If said roads are not so fenced, and any animals are killed or injured by the cars, &c., the owner may recover the value of the stock without proof of any negligence of the agents. (R. C. 1855, p. 649, § 5--Damages.)
It follows that the railroads are responsible by law for all negligent killing by their agents when the railroad is well fenced, and if not fenced, for any killing of stock; and in the case before the court, the verdict of the jury and...
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...3145 gives a cause of action, and any common-law negligence that existed Is not, by reason of such statute, done away with. See Calvert v. Railroad, 34 Mo. 242; Id., 38 Mo. 468; Iba v. Railroad, 45 Mo. 469; Minter v. Railroad, 82 Mo. 128. We do not think it follows that because a plaintiff ......
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Martin v. Richmond Cotton Oil Co.
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