Henson v. Williamsville, G. & St. L. Ry. Co.

• Decision Date: 21 February 1905
• Court: Missouri Court of Appeals
• Parties: HENSON v. WILLIAMSVILLE, G. & ST. L. RY. CO.

85 S.W. 597

110 Mo. App. 595

HENSON v. WILLIAMSVILLE, G. & ST. L. RY. CO.

St. Louis Court of Appeals. Missouri.

February 21, 1905.

RAILROADS — FAILURE TO FENCE — FRIGHTENING STOCK — INJURY.

Rev. St. 1899, § 1106, provides that when any stock shall go on a railroad right of way at a place where the road is not fenced, and the stock is frightened by any locomotive or train and injured, the company shall be liable; and section 4160 provides that words and phrases shall be taken in their plain and usual sense. Held, that a "speeder" — a contrivance similar to a hand car, save that it is operated by a gasoline engine — is not a "locomotive," within the statute, and a railroad is not liable for injuries to stock frightened thereby.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Action by B. F. Henson against the Williamsville, Greenville & St. Louis Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The action is bottomed on section 1106, Rev. St. 1899, which reads as follows: "Whenever any live stock shall go in upon any railroad or its right of way, in this state, and the said railroad is not at such place or places inclosed by a good fence on both sides of said railroad, such as is by law required, and such stock, by being frightened or run by any passing locomotive or train on said railroad, shall be injured or killed by or because of having run against the fence on either side, or into any culvert, bridge, slough or mire, or other object along the line of said road, the railroad company shall pay the owner of any such stock so injured or killed the damage sustained."

Plaintiff's horse went upon defendant's railroad track at a place where defendant was required by law to maintain fences, but where there were no fences. The horse was frightened by what the witnesses term a "speeder," running on the railroad track. After being frightened by the speeder, the horse ran down the track into a trestle, and was injured and damaged. The speeder was in charge of Joseph Thompson, who was called as a witness for the plaintiff. In respect to the speeder, he testified as follows in describing the construction of the car: "Q. It resembled a hand car, so far as being flat on top, did it not? A. Yes, sir. Q. Was there any cover on it? A. No, sir. Q. About what size wheels has it? A. I think they were between twelve and sixteen inches high. Q. How many wheels were on it? A. Two big ones and one small one. Q. It has two large ones on one side and a small wheel on the other? A. Yes, sir. Q. In the center of the car, and underneath the floor of it, there is a little gasoline tank, is there not? A. Yes, sir. Q. And while sitting there you ride out in the open. A. Yes, sir. Q. The car, I believe, is about the width of a railroad track? A. Yes, sir. Q. Now, it takes two or three men to run a hand car, does it not? A. Yes, sir. Q. Did you use this on the railroad in the place of a hand car? A. Yes, sir. Q. Because it...