Comings v. Hannibal & Cent. Missouri R.R. Co.

• Decision Date: 31 October 1871
• Parties: DUDLEY C. COMINGS, Plaintiff in Error, v. HANNIBAL & CENTRAL MISSOURI RAILROAD COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

48 Mo. 512

DUDLEY C. COMINGS, Plaintiff in Error,

v.HANNIBAL & CENTRAL MISSOURI RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Hannibal Court of Common Pleas.

A. B. Wilson, for plaintiff in error.

I. The court erred in sustaining defendant's demurrer. The petition is sufficient under section 43 of the act in relation to railroad companies (Wagn. Stat. 310, § 43; Cecil v. Pacific R.R., 47 Mo. 248.)

II. The petition is sufficient under the common law, if not under the statute, and the demurrer should have been overruled. (Hewitt v. Harvey, 46 Mo. 369.)

Thos. H. Bacon, for defendant in error.

I. The petition fails to aver that defendant's road existed, or that defendant has failed to erect or construct and maintain fences or cattle-guards on the sides of the road of defendant; but, on the contrary, invariably substitutes the expression “roadbed” for the statute language “road” and “railroad.” No failure to comply with said statute is averred, and no cause of action thereunder is shown. (Gen. Stat. 1865, p. 342, § 43; Wagn. Stat. 311, § 43; Clark v. Vermont, etc., 28 Verm. 103; Holden v. Rutland, 30 Verm. 297, 306; 1 Chit. Pl. 371, note 4, 372; Great Western R.R. v. Hanks, 36 Ill. 281.) The aforesaid interpretation of the statute is supported by the passage in section 43, which dates the failure to erect fences from the “completion of the road,” and not from beginning of construction. Moreover, there is no averment that defendant took possession of any land.

II. The petition not showing that plaintiff's inclosure was required by the statutes (Gen. Stat. 1865, p. 384, § 1; Wagn. Stat. 706, § 2; Moore v. White, 45 Mo. 206), or that the same was sufficient to keep out the animals, damage feasant( id.), or that plaintiff had used due care to exclude the animals--a fact necessary to be proved at common law (1 Hill. Torts, 126, and cases cited), and to be averred in code pleading (Wagn. Stat. 1012, § 3; Burdick v. Warrall, 4 Barb. 596)--and the petition, on the contrary, showing plaintiff's own negligence in leaving the inclosure open for two years, receiving the damage while he was in possession (Shearm. & Redf. Negl. 321, § 463, note 1; Waters v. Brown, 44 Mo. 302; Terry v. New York, etc., 22 Barb. 574), and no negligence of defendant or damage to plaintiff being averred, except that alleged to arise from defendant's failure to construct and maintain fences and cattle-guards along, etc., its “road-bed,” a step which neither statute nor common law requires (Wagn. Stat. 311, § 43; Gorman v. Pacific R.R., 26 Mo. 441), the petition shows no cause of action either on the statute or at common law, in trespass on the case. (Gen. Stat. 1865, p. 379, § 2; Wagn. Stat. 1345, § 2.)

III. Grounds of demurrer are specified by saying that the petition does not state facts sufficient to constitute a cause of action. (Haire v. Baker, 5 N. Y. 357; Kent v. Snyder, 30 Cal. 666; Monette v. Cratt, 7 Minn. 234; Stanley v. Peeples, 13 Ind. 232.)

WAGNER, Judge, delivered the opinion of the court.

This case was determined in the court below by a demurrer which was sustained to the plaintiff's petition. It becomes, therefore, necessary to see whether the petition sets forth a cause of action. In substance, it recites that in June, 1869, plaintiff was the owner and in possession of a farm in Ralls county, at that time divided into fields suitable in size for cultivation, with crops of grass and grain growing thereon, and that the farm and fields were at that time inclosed with a substantial fence; that at the time above mentioned the defendant, a railroad corporation organized under the laws of this State, by its duly authorized agents, officers and employees, unlawfully and with force and arms, without the consent of plaintiff, entered into and upon the said inclosed and cultivated fields and farming lands, tore away the fences inclosing the same, and caused a road-bed for its railroad to be thrown up, cut and constructed through the same; that the defendant then left its road-bed without inclosing it with a good and substantial fence, and without constructing cattle-guards thereon where it passed through plaintiff's farm, as required by the statute; that by reason of such failure to erect suitable fences, etc., plaintiff's land was left unprotected and thrown open to the public, and all kinds of stock, cattle, etc., had access to the same, and trampled down his growing crops and damaged and destroyed them to the amount of $250. There was then a prayer for double damages under the statute.

The main reason insisted upon to support the judgment of the court below, is that the facts alleged in the petition do not bring it within the purview of the statute compelling railroads to erect fences, and giving double damages in case of failure; that the petition simply speaks of a road-bed, while the statute contemplates a completed road. The statute makes it the duty of the corporation to “erect good and substantial fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed prairie lands, of the height of at least five feet, with openings and gates or bars therein, and farm-crossings of the road, for the use of the proprietors or owners of the lands adjoining such railroads, and also to construct and maintain cattle-guards at all railroad crossings where fences are required as aforesaid, suitable and sufficient to prevent horses, cattle, mules and all other animals from getting on the railroad. Until such fences, openings and gates or bars, farm-crossings or cattle-guards, shall be duly made and maintained, such corporation shall be liable in double the amount...