Dent v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 496
• Parties: DENT v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 496

DENT

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Francois Circuit Court.--HON. JAS. D. FOX, Judge.

REVERSED.

Geo. H. Benton for appellant.

(1) The court had no jurisdiction over the subject-matter of the action. R. S., § 2835. The statute giving to justices of the peace jurisdiction of all actions against any railroad company in this state to recover damages for the killing or injuring horses, etc., “without regard to the value of such animals, or the amount claimed for killing or injuring the same” is unconstitutional and void. (2) It is in violation of the constitution of the state of Missouri, Article IV., § 53, subdivision 17, which provides that “the general assembly shall not pass any local or special law ‘regulating the jurisdiction of * * * justices of the peace.” (3) It is also in violation of the constitution of the United States, article XIV, section 1, which provides that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” Cooley on Const. Lim. §§ 128, 129 and note; Potter's Dwarris on Statutes and Const., pp. 52, 53; 1 Kent Com., 459; State ex rel. Henderson v. Boone Co., 50 Mo. 317; State v. New Madrid Co., 51 Mo. 86, 88; Hall v. Bray, 51 Mo. 293; State ex rel. Dome v. Wilcox, 45 Mo. 465; State ex rel. Harris v. Hermann, 75 Mo. 340; Thomas v. Board of Com., 5 Ind. 4. (4) The statute (R. S., sec. 809) which gives to the owner of animals killed on a railroad, by reason of the violation by the latter of the provisions of said section, double the value of the animals so killed or injured, is unconstitutional. Const., Art. 2, secs. 8, 20. It also violates the constitution of the United States. Const., Art. 14, sec. 1. (5) The statute (R. S., sec. 809) does not require railroad companies to construct eattle guards at private farm crossings. The court erred in admitting evidence to prove the failure of the company to construct cattle guards at the plaintiff's private farm crossing, and in instructing the jury that it was defendant's duty so to do, as requested by plaintiff, and in refusing defendant's instructions which asserted the contrary doctrine. Fitterling v. Mo. Pacific R. R. Co., 79 Mo. 504; Brooks v. The N. Y. & E. R. R., 13 Barb. 594; Edwards v. K. C., St. Jo. & C. B. R. R., 74 Mo. 117; Bartlett v. Dubuque Ry. Co., 20 Iowa 188; Cook v. Ry. Co., 36 Wis. 45; Connor v. Ry. Co., 13 N. Y. 42. (6) The verdict and judgment on the whole evidence is for the plaintiff when it should have been for the defendant and the court erred in not sustaining defendant's demurrer to the evidence at the close of the case. Cecil v. Ry. Co., 47 Mo. 246; Clardy v. Ry. Co., 73 Mo. 576; Case v. Ry. Co., 75 Mo. 670; Walther v. Ry. Co., 78 Mo. 622; Eames v. Ry. Co., 14 Allen 151; Toledo Ry. Co. v. Fowler, 22 Ind. 316; Ind. Ry. Co. v. Adkins, 23 Ind. 340; Ry. Co. v. Helm, 27 Ill. 199.

Taylor & Bush for respondent.

(1) The statute giving justices jurisdiction in this class of cases without regard to the value of the stock killed is constitutional. Hudson v. R. R., 53 Mo. 525. (2) The statute requires cattle guards to be constructed at farm crossings. Such a construction is within the purpose and object of the statute which was to prevent the killing of stock, and their trespass upon adjoining land. Silver v. R. R., 78 Mo. 532; Sedgwick on Const. and Stat. Law, 236; Rutlege v. R. R., 78 Mo. 290.

HENRY, C. J.

This suit originated in a justice's court in St. Francois county, and is for the recovery of double damages against the defendant, for stock killed on its road by a train of cars in consequence, as is alleged, of defendant's failure to construct cattle guards at plaintiff's farm crossing. From a judgment of the circuit court for plaintiff on appeal, defendant has appealed to this court.

The first point made by appellant's counsel is, that the act giving to justices of the peace jurisdiction of all actions against railroad corporations in this state, for the recovery of damages for killing horses, etc., without regard to the value of the animal killed is unconstitutional. Art. 4, sec. 53, subdivision 17, is the provision of the state constitution which, it is contended, is violated by the act in question. It declares that the general assembly shall not pass any local or special law regulating the jurisdiction of justices of the peace. The act in question is not a local or special law, for it applies throughout the state, conferring the same jurisdiction upon every justice of the peace in the state in actions for killing stock, against every railroad in the state, instituted by any citizen of the state, or of the United States. As was observed by Judge Vories in Hudson v. Railroad Co., 53 Mo. 534: “This statute is general and comprehensive in its terms, applying to all railroad companies.”

Appellant, also, makes the point that section 809, Revised Statutes, does not require railroad companies to construct cattle guards at private farm crossings. This question has never been directly considered by this court, except in the case of Fitterling v. Mo. Pac. Ry., 79 Mo. 504. There defendant was sued under section 809 of the Revised Statutes, for killing two mules belonging to plaintiff. The railroad ran through plaintiff's field. It was enclosed by lawful fences, as required by the section, and defendant had erected gates for plaintiff at a farm crossing, but had constructed no cattle guards. Judge Sherwood delivering the opinion said: “And the place where the gate was hung, being a ‘farm crossing,’ neither cattle guards, nor cross-fences were necessary, since the law does not require their construction at such points. R. S. 1879, sec. 809. Evidence that no such cattle guards or cross-fences were built, did not strengthen plaintiff's case, and...