Ferris v. St. Louis & H. Ry. Co.

• Decision Date: 27 March 1888
• Citation: 30 Mo.App. 122
• Parties: HENRY E. FERRIS, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 122

HENRY E. FERRIS, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the Lincoln Circuit Court, HON. E. M. HUGHES, Judge.

Reversed and remanded.

THEODORE G. CASE and JAMES H. ORR, for the appellant: It is obvious that the law of 1885 was a natural consequence of the decisions of this court and of the Supreme Court, that the railroad company is not liable under section 809 of the Revised Statutes, unless the animal was injured by contact with the engine or train of the railroad company. Boggs v. Railroad, 18 Mo.App. 274; Gilbert v Railroad, 23 Mo.App. 65; Seibert v. Railroad, 72 Mo. 565. The testimony of the plaintiff discloses indisputably that the farm of his father, upon which the mare was being pastured, was fully four miles distant from the railroad, and that numerous fields lay between the farm belonging to other and distinct proprietors, and the railroad. Berry v. Railroad, 65 Mo. 172; Harrington v. Railroad, 71 Mo. 384; Peddicord v Railroad, 85 Mo. 160; Johnson v. Railroad, 80 Mo. 620; Busby v. Railroad, 81 Mo. 49; Stanley v. Railroad, 84 Mo. 631; Carpenter v. Railroad, 25 Mo.App. 110; Smith v. Railroad, 25 Mo.App. 115.

R. H. NORTON, for the respondent: Respondent was entitled to recover, notwithstanding his mare went on to appellant's roadway from the field of an adjoining proprietor, provided the fence around such adjoining proprietor's field was not a lawful fence, and such fact is shown. Smith v. Railroad, 25 Mo.App. 113; Harrington v. Railroad, 71 Mo. 384; Peddicord v. Railroad, 85 Mo. 163. As to the failure of the court to sustain defendant's demurrer to plaintiff's evidence, defendant waived its demurrer when it proceeded with its case and supplied the defects in plaintiff's evidence. Cadmus v. Bridge Co., 15 Mo.App. 96; Goodger v. Finn, 10 Mo.App. 226. The mare was not a trespasser on Tuttle's field (from which field the evidence shows she went on to defendant's track), unless the fence around this particular field was a lawful fence. The only matter plaintiff was required to prove on this point was that this field was not surrounded by a lawful fence on the sides other than the one contiguous to defendant's road, where the animal got over. Carpenter v. Railroad, 25 Mo.App. 110; Peddicord v. Railroad, 85 Mo. 163.

OPINION

ROMBAUER P. J.

This is an action against a railroad company for killing plaintiff's mare. The statement upon which the cause was tried contained two counts. The first was based upon section 809 of the Revised Statutes, and sought to recover double damages as a penalty for defendant's failure to maintain a sufficient fence at the place where the animal got upon the track. The second was based on the statute of March 31, 1885 (Laws 1885, p. 92), and sought to recover the value of the animal and attorneys' fees, for the causes provided in said act.

The plaintiff dismissed the second count upon the trial and proceeded to the jury on the first count alone. He had a verdict for one hundred and thirty dollars, the value of the animal, as found by the jury, and the court, upon such verdict, entered a judgment against defendant for two hundred and sixty dollars. The appeal is prosecuted from this judgment.

A number of errors are assigned, but under the view we take of the case it is necessary to notice but one, namely, that the evidence fails to support the verdict.

The evidence is conclusive that plaintiff was not an adjoining land-owner, nor a next adjoining owner. In fact it stands conceded that his field from which the mare strayed was four miles in a direct line from the defendant's track, the lands of a number of other proprietors intervening. It does not appear that the mare was in the field adjoining the railroad's right of way, or in the field next adjoining, by the license or consent, express or implied, of either of the owners; on the contrary, it expressly appears that the mare, after leaving plaintiff's premises, traversed the lands of a number of intervening proprietors as a trespasser.

On this state of the evidence there can be no recovery against the defendant under the provisions of section 809. The provisions of that section are penal, and for the protection of...