Ells v. Pacific R.R.

• Decision Date: 31 July 1871
• Citation: 48 Mo. 231
• Parties: H. N. ELLS, Respondent, v. PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

48 Mo. 231

H. N. ELLS, Respondent,

v.PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

July Term, 1871.

Appeal from Cooper Circuit Court.

J. N. Litton, for appellant.

I. A contract by a railroad with a land-owner to fence the road through his ground, is a good answer to him for killing his stock. (Indiana R.R. v. Petty, 25 Ind. 413; Johnson v. Milwaukee R.R., 19 Wis. 139; Corwin v. N. Y. & Erie R.R., 13 N. Y. 49; Talmadge v. R. & S. R.R., 13 Barb. 493; Towles v. R. & S. R.R., 18 Barb. 583; 2 Hill, N. Y. Com. Pleas, 496; Easter v. L. M., 14 Ohio St. 48; Cin. & Ham. R.R. v. Waterman, 4 Ohio St. 424; 33 Cal. 230; St. Louis & Cin. R.R. v. Todd, 36 Ill. 409; Terre Haute R.R. v. Smith, 16 Ind. 102; 1 Redf. Railw. 466, § 6, p. 494, § 24; Pierce on. Am. R.R. 344; Shearm. & Redf. Negl. 383, § 319.) Was there the slightest evidence or admission tending to prove these facts?

II. Defendant need not fence in cities. (Iba v. Hann. & St. Jo. R.R., 45 Mo. 472; 1 Redf. Railw. 494, § 25; 20 Ind. 231; Parker v. Rensselaer, etc., 16 Barb. 316; 13 Barb. 390; Great Western R.R. v. Morthland, 30 Ill. 458; Galena R.R. v. Griffin, 31 Ill. 303.)

Hayden & Tompkins, for respondent.

The fourth instruction asked by appellant was properly refused by the Circuit Court. In Meyers v. North Mo. R.R., 35 Mo. 352, this court decided that the railroad was not liable for killing a cow within the limits of the city of St. Louis, at a point on its track not fenced, opposite an unimproved street, but which had been set aside by its owner for a street, and so dedicated to the public. The doctrine of this case was afterward partly recognized by this court in the case of Iba v. Hann. & St. Jo. R.R., 45 Mo. 469, but not, as we think, extended. It is true, in the case last mentioned the court says that the obligation to fence could not be extended to towns and cities, and gives as a reason that, though the streets are not actually opened, they are liable to be at any day, when the fence would be found an obstruction to crossing. The court then gives as authority Meyers v. North Mo. R.R. Co., supra.

BLISS, Judge, delivered the opinion of the court.

Defendant leased and ran the Osage Valley & Southern Kansas Railroad, and plaintiff charges that the cars upon the road so leased run over and killed his mule and a colt, etc., and that they were killed upon a portion of the road not inclosed by a fence. We will only consider two of the defenses set up, which are, first, that the place where the animals entered upon the track was within the incorporated town of Boonville, and hence the company was under no obligation to fence the road; and, second, that the O. V. & S. K. Railroad had made a contract with the plaintiff to inclose the road with a fence at that place, and had paid him for the same. Both defenses were sustained by the evidence, but the court held them insufficient, and gave the plaintiff judgment for $500.

In regard to the first defense, it appeared that the portion of the town where the accident happened had not been laid out into lots, streets and alleys, and that no road or street had been established to eross the railroad near that point. This action is prosecuted under the fifth section of the act concerning damages, etc. (Wagn. Stat. 520), and the question is raised for the first time in this court, whether a railroad company is excused from fencing the track of its road when it runs through a town or city, merely from that fact, and without reference to whether it thereby crosses the public highways of such town or city. From the remarks of the court in Meyer v. N. M. R.R. Co., 35 Mo. 352, and in Iba v. Hann. & St. Jo. R.R. Co., 45 Mo. 469, such excuse seems to be inferred by counsel. But the statute makes no exception in regard to towns, but only an implied one in the crossing of a public highway. Nor do the cases referred to enlarge the exception. Ordinarily a railroad track cannot run any considerable distance within a town without being crossed by some...