Garner v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1863
• Citation: 34 Mo. 235
• Parties: JOHN GARNER, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

34 Mo. 235

JOHN GARNER, Respondent,

v.THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1863.

Appeal from Marion Circuit Court.

The facts are sufficiently stated in the opinion.

The following instructions prayed by defendant were refused:

1. If the jury believe from the evidence that the stock sued for in this case was not in Harmon Hollyman's enclosed field at the time said stock was struck and killed, as alleged in plaintiff's petition, they will find for the defendant.

2. The jury are instructed that the defendant is not required to fence on each side of its railroad where the same passes through an enclosed field.

3. The jury are instructed that the defendant is incorporated by virtue of an act of the General Assembly of this State, entitled “An act to incorporate the Hannibal and St. Joseph Railroad Company,” approved February 16, 1847, and the several acts amendatory thereof, by none of which is defendant required to fence on each side of its railroad.

4. Defendant is not subject to the provisions of the 52d section of the act entitled “An act to authorize the formation of railroad associations, and to regulate the same,” approved December 13, 1855, as alleged by plaintiff in his petition.

5. If the jury believe from the evidence that the stock sued for in this cause was killed in Harmon Hollyman's enclosed field, and said railroad was not enclosed by a lawful fence where it passes through said field; and the jury further find that the defendant paid Harmon Hollyman the damages resulting from the location and construction of defendant's railroad through said field, the duty of fencing on each side of said railroad through said field was on said Harmon Hollyman, and not on the defendant, and the jury will find for the defendant.

6. The plaintiff cannot recover in this cause unless he proves that the defendant was guilty of negligence in killing the stock sued for; and if the jury believe from the evidence that the person in charge of the locomotive which struck said stock tried to scare said stock off the track by blowing the whistle, then the defendant, through its agents, exercised reasonable care and diligence, and they will find for the defendant.

7. If the jury believe from the evidence that the stock sued for were in Harmon Hollyman's enclosed field at the time they were killed, without any authority or license from said Hollyman, said stock was there unlawfully, and the defendant is not bound to fence its roads as against said stock, and they will find for the defendant, unless they further find that said stock were negligently killed by defendant's locomotive or cars.

Pratt & McCabe, for respondent.

Carr, for appellant.

I. Admitting the allegations in the petition to be true, they do not show any legal cause of action against the appellant. The petition is based on the 52d section of what is known as the General Railroad Law, entitled “An act to authorize the formation of railroad associations, and to regulate the same,” approved December 13, 1855, (R. C. 1855, p. 437) by which it is provided, that “every corporation formed under this act shall erect and maintain fences on the sides of their road where the same passes through enclosed fields, and until such fences and cattle-guards shall be duly made the corporation and its agents shall be liable for all damages which shall be done by their agents or engines, to cattle, horses, or other animals thereon.” The first allegation in the respondent's petition is, that the appellant is “a body politic and corporate, created under and by an act of the Legislature of this State, entitled ‘An act to incorporate the Hannibal and St. Joseph Railroad Company,’ approved February 16, 1847, and the acts amendatory of the same,” which allegation is admitted in the answer. Now, if the appellant was formed under the latter act, then it is not a “corporation formed under this act,” i. e., the General Railroad Law, approved December 13, 1855. And if it is not formed under said act, then it is not subject to “the duties, liabilities, and provisions,” imposed by the 52d section of said act, requiring “every corporation formed under said act to erect and maintain fences on the sides of their roads where the same passes through enclosed fields,” provided such duty of erecting and maintaining fences is “not inconsistent with the provisions of the appellant's charter” on that subject.

II. The appellant, by virtue of its charter, has large and beneficial franchises granted to it, and is under corresponding responsibility to the public as a common carrier of passengers and freight. It is bound to carry for all persons who apply, unless it has a reasonable excuse for the refusal to do so. The company thus becomes a kind of public officers, and owe to the public a general duty, independent of any contract in the particular case. (Red. on Railw. 261.) Thus it is held liable, by virtue of its office, as a common carrier, for all damage and loss to goods during the carriage, from whatever cause, unless from the act of God, which is limited to inevitable accident, or from the public enemy, ( id. 232,) and to passengers for injury, where there is the “smallest negligence.” ( Id. 323.) The appellant is under paramount obligation to the public to carry passengers and property with speed and safety. It is under secondary obligation to persons living along the line of its railroad so to use its rail cars as not to injure their stock that may trespass upon its railway. (See the very able and learned opinion of the Court of Appeals of Kentucky on this point, delivered by Justice Wood, in the case of Louisville & Frankfort R.R. Co. v. Ballard, 2 Metcalf, 180.)

DRYDEN, Judge, delivered the opinion of the court.

The errors complained of in this case relate, 1st, to the refusal of the court below to arrest the judgment; 2d, to the instructions to the jury given by the court of its own motion; and 3d, to the refusal of instructions asked by the appellant.

1. As to the refusal of the court to arrest the judgment. The motion in arrest was based on the supposed insufficiency of the petition. The petition contains three counts, substantially alike, the first of which is as follows: “Plaintiff states that defendant is a body politic and...