Ells v. Pacific R.R.

• Decision Date: 31 January 1874
• Citation: 55 Mo. 278
• Parties: H. N. ELLS, Respondent, v. PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

55 Mo. 278

H. N. ELLS, Respondent,

v.PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

January Term, 1874.

The following diagram represents the localities described by the court.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Appeal from Cooper Circuit Court.

Hayden & Tompkins, for Respondent.

J. N. Litton, for Appellant.

I. Strangers and trespassers on lands have inferior rights to land owners when their stock are killed. (Mayberry vs. Concord R. R., 47 N. H., 391; Cornwall vs. Sullivan R. R. Co., 8 Foster, 161; Ham vs. A. & St. Lawrence R. R., 35 N. H., 163; Chapin vs. Sullivan R. R. Co., 39 N. H., 53 and 564; Woolson vs. Northern R. R., 19 N. H., 267; Jackson vs. Rutland R. R. Co., 25 Vt., 150; Morse vs. Rutland R. R. Co., 27 Vt., 49; Picketts vs. East Ind. Docks R. R. Co., 12 C. B., 160; Eames vs. Salem R. R. Co., 98 Mass., 560; Perkins vs. Eastern R. R. Co., 29 Maine., 307; Hurd vs. R. & B. R. R., 25 Vt., 116; Brooks vs. N. Y. & Erie R. R., 13 Barb., 596; Talmadge vs. R. & S. R. R. Co., 13 Barb., 493; 33 Cal., 230; Aylesworth vs. Hennington, 17 Mich., 417.)

II. Meeting an allegation of fact by a statement of a conclusion of law, admits the fact alleged. (See Soeding vs. Bartlett, 35 Mo., 90.)

VORIES, Judge, delivered the opinion of the court.

This action was brought by the plaintiff in the year 1870, to recover damages from the defendant, under the 5th section of the statute of this State, concerning “damages and contributions in actions of tort” (Wagn. Stat., 520), for killing horses and mules of the plaintiff on the railroad of the defendant, on a portion of the said railroad, where the same was not fenced and where there was no crossing of a public highway.

The defendant, by its answer, after denying the material allegations of the petition, sets up the following new matter as a defense to the action: That on the 10th day of February, 1868, the Osage Valley and Southern Kansas Railroad Company leased to defendant that portion of their road extending from Tipton, in Moniteau county, to Boonville, Cooper county, all in the State of Missouri, with all the rights, privileges and appurtenances to said Osage Valley and Southern Kansas Railroad Company belonging or in anywise appertaining. Defendant further says, that the Osage Valley and Southern Kansas Railroad Company, by their Chief Engineer, P. M. Gustravus, entered into an agreement with the plaintiff herein, whereby the said plaintiff, for a valuable consideration in said contract mentioned, agreed to build 1,500 feet of picket fencing on his land and along the line of said railroad in said county of Cooper aforesaid, said fencing to be a good and lawful fence. And said railroad company by their chief engineer, agreed to pay and did pay plaintiff the sum of three hundred and sixty-four dollars, with which to build said fence; but plaintiff wholly disregarding his obligations and duties under said agreement, failed and refused and neglected to build said fence as he had agreed to do

“Defendant further says, that by reason of said failure and neglect on the part of said plaintiff to build said fence as he had agreed to do, said railroad track adjoining said land that he had agreed to fence, and whereon said stock was roaming, and from which it escaped upon the railroad track, remained unfenced by plaintiff, and in the condition it was at said time. And said stock came upon the track by reason of plaintiff's failure to build the fence at a point where he contracted to fence. And for further answer, defendant says, that, notwithstanding plaintiff had contracted and failed to build said fence, said Osage Valley and Southern Kansas Railroad did, at its own expense, build a good and lawful fence along said road, where said stock came upon said road, and that the same was a private farm crossing. The answer of the defendant then proceeds to state the following matter by way of further defense: “This space said Osage Valley and Southern Kansas Railroad desired to fence up with a permanent and immovable fence and was engaged in doing so when the owner of said land demanded, that instead of a fence, the said railroad should fill a space of seven or eight feet with bars that he could remove, so as to enable said owner to pass across said railroad to his land on the other side of said railroad, and said Osage Valley and Southern Kansas Railroad did put in said fence a private farm crossing, and closed the same with good and sufficient bars, sufficient to turn stock, but shortly before the accident, the owner of said land did remove said bars, and erected at the other end of the private lane that terminated at said private farm crossing on the railroad, a good and sufficient gate, and when said gate was closed, stock could not get upon said railroad, and said railroad was closed with a lawful and sufficient fence, but on the morning of the accident, plaintiff's stock roaming upon the public streets in the City of Boonville, escaped therefrom through said gate, which had accidentally been left open by strangers, upon the private enclosed premises of one Sandrock, the owner of said land, and running through said premises, down said private lane, escaped through the place from which said owner, Sandrock, had removed said bars, on to the railroad track. Said stock were trespassers, and said plaintiff was guilty of gross negligence, in not removing said stock from said track, after he knew they were there and the train was coming. Wherefore,” &c.

The plaintiff filed his motion to strike out all of this latter defense, set forth in this last part of said answer, because the facts therein stated constituted no defense to the action and were frivolous and irrelevant. This motion was sustained by the court and defendant excepted. The plaintiff then filed a replication to the remaining affirmative part of the answer, in which he states that: “He denies he was bound by any contract with the Osage Valley and Southern Kansas Railroad, to build a fence on his own land and on the line of said railroad track, as stated by defendant in his said answer, and denies that plaintiff's stock came on said railroad track by reason of plaintiff not building a fence that he was bound to build by reason of any contract that he had made.”

The plaintiff then denies that defendant had built a good and lawful fence on said road, and states, that at the time said stock came on said road there was no lawful fence on said road, and prays judgment, &c.

The defendant moved the court for judgment on the replication, because the allegations setting forth a contract to fence the land, in the answer, are not denied specifically in the manner required by law. This motion was overruled by the court and the defendant excepted.

The case was tried by a jury. The plaintiff introduced evidence tending to prove that the mules and horses were killed and injured on the 7th day of July, 1869, within the limits of the City of Boonville, but at a portion thereof not laid out into streets or town lots; that there was a fence on the east side of the railroad track; that there was a street or passage-way on the north or north-west side of the roads which had been opened by the owners of the land for their use and convenience, and which extended from a north direction southward, and ran between the land of plaintiffs and one Sandrock, and approached the railroad in a southward direction to within some fifty yards of the road; that plaintiff lived on the west side of this private street and some distance north of the railroad, and that Sandrock resided on the east side of this private way, and his house was near the railroad and only a short distance east of this street, but as the street did not extend south to the railroad lands, Sandrock had no convenient outlet from his house to the street. He, therefore, opened and fenced an alley from the south end of said street to the railroad land, continuing with the east line of said street to the railroad land, along which the railroad was constructed. After this alley reached the railroad lands it turned directly east, forming an angle and extending along the north edge of the railroad to his house, a distance of about fifty yards. This alley was fenced on the east and north sides by Sandrock and on the west by the plaintiff and on that part of the alley running east, it was fenced by the railroad on the south side next the road. The east end of the alley, near Sandrock's house was closed by bars being erected across the same. These bars had afterwards been removed and a gate erected by Sandrock at the north end of the alley, where it intersected the end of the street in the direction...