Cecil v. Pacific R.R. Co.

• Decision Date: 31 January 1871
• Parties: A. J. CECIL, Defendant in Error, v. PACIFIC RAILROAD COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

47 Mo. 246

A. J. CECIL, Defendant in Error,

v.PACIFIC RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

J. N. Litton, and Crittenden & Cockrell, for plaintiff in error.

Under the statute (Wagn. Stat. 310, § 43), it is indispensable that plaintiff allege and prove not only that stock got on where defendant was obliged to fence, but also that the stock did not get on at the public crossing. (Calvert v. Hann. & St. Jo. R.R., 34 Mo. 244; Quick v. Hann. & St. Jo. R.R., 31 Mo. 399; West v. Hann. & St. Jo. R.R., 34 Mo. 177; Dyer v. Pacific R.R., id. 129; O. & M. R.R. v. Brown, 23 Ill. 94; O. & M. R.R. v. Taylor, 27 Ill. 207; G. W. R.R. v. Bacon, 30 Ill. 347; G. & C. R.R. v. Sumner, 24 Ill. 631; C., B. & Q. R.R. v. Carter, 20 Ill. 390; O. & M. R.R. v. Meisenheimer, 27 Ill. 30; O. & M. R.R. v. Jones, id. 41; id. 48; G. W. R.R. v. Hanks, 36 Ill. 281; 1 Redf. Railw. 498-9, § 32.) The company is liable not for failure to fence where the harm was committed, but where the animal got on the track. There was not the slightest evidence as to where the horse got on. The first seen of him he was running up the track from the Fort Scott crossing, and he ran quite a distance. The statute makes the company liable only where the failure to fence occasioned the injury. (C. & N. W. R.R. v. Bennett, 19 Wise, 145; M. & C. R.R. v. Bell, 37 Ala. 699; I. C. R.R. v. Phelps, 29 Ill. 447.) And it is the point where the stock got on, not where it was killed, that is the test of liability. It is this alone that occasions the accident. (G. W. R.R. v. Morthland, 30 Ill. 451; Morrison v. N. Y. & N. H. R.R., 32 Barb. 568; Shearm. & R. Negl., § 462.)H. B. Johnson, for defendant in error.

Where an injury occurs to domestic animals, at a point of the road not fenced, and not at a road or street-crossing, the company are responsible at all events, and without reference to any question of negligence either on their part or that of the owner of the animals. (Wagn. Stat. 310, § 43; Gorman v. Pacific R.R. Co., 26 Mo. 441; Burton v. North Missouri R.R. Co., 30 Mo. 372; Brown v. Hann. & St. Jo. R.R. Co., 33 Mo. 309; McClure v. Pacific R. R. Co., 35 Mo. 188; Powell v. Hann. & St. Jo. R.R. Co., id. 457; 1 Redf. Railw. 478.) It is unimportant whether or not the horse got on the road at a crossing. The evidence showing that he ran some distance, pursued by the train, clearly establishes that he was not killed at a crossing, and that there were no sufficient cattle-guards.

CURRIER, Judge, delivered the opinion of the court.

This suit is brought to recover double damages for alleged injuries to the plaintiff's horse while upon the track of the defendant's railroad, in Warrensburg township, Johnson county. It is founded upon the forty-third section of the act in relation to railroad companies (1 Wagn. Stat. 310, § 43). The statutes cited make it the duty of railroad companies to “erect and maintain good and substantial fences on the sides of their roads, where the same pass through, along, or adjoining inclosed or cultivated fields or uninclosed prairie lands, * * and also to construct and maintain cattle-guards” at specified points. It is then provided that, until these conditions are complied with, railroad “corporations shall be liable in double the amount of all damages which shall be done by their agents, engines, or cars, to horses, cattle, mules, or other animals, on said roads, * * occasioned by the failure to construct or maintain such fences or cattleguards.” In order to the recovery of double damages under this statute three things at least would seem to be indispensably necessary, namely:

1. Failure on the part of the railroad corporation to provide the required fencing and cattle-guards at the points designated. 2. An injury inflicted by its agents, engines, or cars. 3. That the injury complained of should have been occasioned by the absence of the fences or cattle-guards. (Iba v. Hann. & St. Jo. R.R. Co., 45 Mo. 469.) It would seem but little short of an absurdity to found upon the statute in question a claim for double damages where the injury complained of did not result from the absence of the specified fences or cattle-guards; in other words, where the injury was not ““occasioned” by the failure of the corporation to discharge the duties imposed upon it by the statute. It has repeatedly been held in other States, under similar statutes, that the railroad company is liable only when the animal injured entered upon the line of the road at a place which the company was bound to fence. (Morrison v. N. Y. &. N. H. R.R. Co., 32 Barb. 568; G. W. R.R. Co. v. Hanks, 30 Ill. 281; Shearm. & R. Negl., 462, and authorities cited; Redf. Railw. 466, § 3.) The fact that the fences were defective is immaterial if the animal injured entered at another place. (G. W. R.R. v. Morthland, 30 Ill. 458; Brooks v. N. Y. & Erie R.R. Co., 13 Barb. 594; Bennett v. C. & N. W. R.R. Co., 19 Wis. 145.) So it has been held that the neglect of a railroad company to build a fence does not exonerate the plaintiff from obligation to take ordinary care for the protection of his animals when the fence, if built, would not have been sufficient to close access to the track. It is considered that if the plaintiff's negligence was the direct and proximate cause of the injury, the defendant should have the benefit of that principle, notwithstanding its...