Farley v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1880
• Citation: 72 Mo. 338
• Parties: FARLEY v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

72 Mo. 338

FARLEY

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Jackson Circuit Court--HON. S. H. WOODSON, Judge.

AFFIRMED.

Wells H. Blodgett and Prosser Ray for appellant.

Our statute cannot be so construed as to cast upon the defendant the burden of fencing the track owned by another company, while the company owning that track remains in the undisputed exercise of its authority and in the absolute possession of its own property, and that, too, without so much as an averment or the suggestion of a lease or contract giving defendant dominion over the property, other than the mere privilege of moving its cars upon the iron rails of the owner. The company which has the right and power to fence is alone liable for failure to do so. Liddle v. Keokuk, etc., R. R., 23 Iowa 378; Cincinnati, etc., R. R. v. Paskins, 36 Ind. 382.

Dunlap & Freeman for respondent, cited Redfield on Railways, (5 Ed.) top p. 509, § 127, ¶ 8, note 11; Ib., top p. 619, § 142, ¶ 3; Wharton on Negligence, (2 Ed.) § 901, chap. 6; Shearman & Redfield on Negligence, (2 Ed.) p. 542, chap. 26, § 466, note 5; Toledo, etc., R. R., v. Rumbold, 40 Ill. 143; Illinois Cent. R. R. Co. v. Kanouse, 39 Ill. 272; Clement v. Canfield, 28 Vt. 302; Tracy v. Troy, etc., R. R. Co., 38 N. Y. 433; Penn. R. R. Co. v. Sly, 55 Pa. St. 209.

SHERWOOD, C. J.

The petition is as follows: Plaintiff states that the defendant is a corporation duly incorporated by the laws of the State of Missouri, and, as such, operates a railroad known as the St. Louis, Kansas City & Northern Railway within the limits of said State. Plaintiff states that at a point in the county of Clay, known as Minneville, the defendant's road, as a separate roadway and track, ceases, and that from that point to Harlem depot, all in Gallatin township, Clay county, Missouri, defendant runs its train of cars, managed and directed by its own servants and agents, and drawn by their own engines over the road-bed and track of the Hannibal & St. Joseph Railroad Company, by an arrangement with said Hannibal & St. Joseph Railroad Company for that purpose; that, during the month of July, 1876, defendant was running its engines and cars over said road-bed and track from Minneville to Harlem under and by virtue of such an agreement. Plaintiff further states that on or about the 9th day of July, 1876, she was the owner and possessor of two cows, to-wit: one large dark-red cow, six years old, of the value of $60, and one large pale-red cow, with white spots and white back, five years old, and of the value of $50; that, on or about the said 9th day of July, 1876, and while the plaintiff was the owner of said cows, they were run over and killed about 400 yards east of the Harlem depot, being a point on said railroad in the township of Gallatin, county of Clay, and State of Missouri, by the engine and cars of defendant, being then and there run and operated on said railroad by the agents, servants and employees of said defendant. Plaintiff further states that, at the point on said railroad track where said cows went upon the track, and at the point where they were run over and killed, as aforesaid, there was and is no public crossing of said railroad track and said railroad track at said point passes through uninclosed lands, and that said railroad track was not and is not inclosed by a lawful fence, and that, on account of the absence of such fence, said cows went upon said railroad track and were killed; thereby plaintiff has been damaged in the sum of $220, being double the value of said cows, for which sum of $220 and costs plaintiff asks judgment.

This petition was held sufficient on a general demurrer, i. e., that the petition did not state facts sufficient to constitute a cause of action. Defendant declining to plead further, the court proceeded to assess the damages, found from the evidence adduced that they were $200, and gave...