Hill v. Missouri Pac. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Citation26 S.W. 576
Decision Date08 May 1894

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Action by I. W. Hill against the Missouri Pacific Railway Company for damages for stock killed. Demurrer to petition sustained, and judgment for defendant. Plaintiff appealed. The St. Louis court of appeals reversed the judgment, certifying a question to the supreme court. Affirmed.

The following is the opinion of the court of appeals (Thompson, J.):

"This action was brought on the 16th of October, 1891, to recover damages for killing certain horses belonging to the plaintiff.

The court sustained a demurrer to the petition. The plaintiff elected to stand on his petition; thereupon the court rendered judgment for the defendant, to reverse which the plaintiff prosecutes this appeal. The petition was as follows: `Plaintiff, I. W. Hill, complaining of the defendant, the Missouri Pacific Railway Company, states that defendant is, and at all times hereinafter mentioned was, a railroad corporation duly organized and existing under the laws of the state of Missouri by the corporate name of the Missouri Pacific Railway Company. That, on the 8th day of November, 1889, and for many years theretofore, said defendant owned and operated a railroad in the state of Missouri, known as the Missouri Pacific Railroad, in part located within the corporate limits of the city of Pacific, in the county of Franklin and state of Missouri, and thence extending westward through the county of Franklin; and the said railroad, where the same crosses the west boundary line of said city, was inclosed by fences along and on the right of way of defendant, on which right of way said railroad was located; and, for a considerable distance from said boundary line into and within the corporate limits of said city, said railroad was, in like manner, inclosed by fences on and along said right of way. That at the place where, in said town, the said road was so fenced, during all said time, the lands adjoining the said railroad and the right of way thereof, on the south side of said right of way, were used for farming purposes, through which, on the south side of said railroad, a narrow lane ran up to the line of the right of way of said railroad; and, at the point where said lane terminated on the south side of said right of way, a gate, forming a portion of said railroad fence, opened into and upon the right of way of said railroad, through which, when open, horses and other domestic animals could pass from said lane into and upon said railroad and right of way, and, being on said railroad and right of way, could not escape therefrom, except by returning through said gate or passing over defendant's said fences and cattle guards connected therewith. That defendant was not required by law to maintain said fences or gate at said point, but maintained the same of its own volition; and, so maintaining the same, it was the duty of defendant to keep said fences and gate in such condition and so connected with cattle guards as to prevent horses and other domestic animals from getting on said road between said fences. That, by reason of the maintenance of said fences at said place, horses and other domestic animals, being on said railroad between said fences, had less chance to escape from being injured by defendant's engines and trains than they would have had if, being on said railroad at said point, said fences had not existed to interfere with their escape from said railroad and right of way onto said adjoining lands; and, therefore, it was the duty of defendant, while it maintained said fences and gate, to use more than ordinary care to keep the same in such condition as to prevent horses and other domestic animals from getting on said railroad through said gate and fences; yet said defendant, on said day and for many years theretofore, maintained said fences and said gate in said fence on said south side of said railroad in a careless and negligent manner, and repeatedly suffered said gate to stand open and unfastened, and to be without suitable latches and fastenings to hold the same closed. That during all said time said gate had thereon insufficient fastenings, that it would open by natural causes independent of being opened by any person, and by reason of its proximity to said city said gate was peculiarly subject to being left open by persons passing either from said adjoining lands to said railroad or from said railroad to said adjoining lands, through said gate; and during all of said time said gate was often left open and unfastened, so that horses and other domestic animals could, by passing through the same, get on said railroad; and on said day and during all said time defendant had notice of said facts. That the maintenance of said gate at said place, as the same was so maintained by defendant, was negligence on the part of defendant, liable to occasion injuries of the character of the injury hereinafter complained of. That, on the 8th day of November, 1889, by reason of said negligence of defendant, three horses, the property of plaintiff, and of the value of $500, then lawfully running at large on the south side of said railroad, passed through said lane, and, the said gate not then being securely fastened, passed through said gate, and so got upon said railroad at a point within the corporate limits of said city; and, having so gotten upon said railroad, and being on said railroad between said fences, were frightened by an engine and train of cars then and there being run and operated on said railroad, and ran before said engine and train of cars along said railroad until they were caught, struck, and killed on said railroad, in said county of Franklin, by defendant, by its said engine and train of cars, on said 8th day of November, 1889. And plaintiff avers that defendant, by its agents and employes, then and there running said engine and train of cars, by the exercise of reasonable care could have seen the said horses and have stopped the said engine and train of cars before overtaking or striking any of said horses, but did carelessly and negligently then and there run said engine and train of cars upon said horses, and kill the same. And defendant having so negligently maintained said gate in said fence, in manner and form as aforesaid, for many years and until the injury aforesaid was done to plaintiff, did within a few days thereafter close up and stop said gate by making a permanent fence along and across the same, as before the killing of plaintiff's said horses it might lawfully have done, and ever since that time defendant has maintained said fence across said gate. And plaintiff avers that, by killing his said horses in manner and form as aforesaid, defendant has damaged plaintiff in the sum of $500, for which said sum, with costs, plaintiff asks judgment.'

"The grounds of the demurrer were thus stated: `First. Said petition does not state facts sufficient to constitute a cause of action. Second. Said petition alleges two separate and distinct causes of action, both united and intermingled in the same count, — the first, for negligently building and failing properly to maintain a certain fence along defendant's railroad, whereby plaintiff's horses were enabled to get upon said right of way, and were killed by defendant's engine and cars; and the second being for negligence on the part of the agents and servants of defendant in failing to see said horses, and negligently running its engine and cars upon said horses; the first cause of action definitely alleging the negligence of the defendant itself, and the second alleging the negligence of the servants of the defendant.' In support of this demurrer, the position of the defendant is twofold: First. That the petition does not state an action at common law, but states an action under section 4428 of the Revised Statutes, which is the statute formerly known as section 5 of the damage act, or the single damage act; and, consequently, that on its face it is barred by the statute of limitations of one year, contained in section 4429 of the damage act, and that this may be reached by demurrer. Second. That it involves a misjoinder of two distinct causes of action.

"1. The question whether the petition states only a cause of action under section 4428 of the Revised Statutes involves two inquiries: First. Whether that section is an exclusive remedy, and repeals any remedy under the common law, in the situation to which it applies, or whether it is cumulative merely, leaving also an action for damages under the rules of evidence existing at common law in the same situation. Second. If the statute is cumulative, whether the petition states a cause of action, to prove which it is necessary to proceed under the statute.

"As to the first of these propositions, it is settled in this state that the statute is cumulative, and does not displace the common law in the situation to which it applies; so that, under a general allegation of negligence, the plaintiff may succeed either by proving negligence at common law, or by proving the constructive negligence of the statute in failing to erect and maintain fences in the given situation. Thus, in Calvert v. Railroad Co., 34 Mo. 243, the petition alleged, in general terms, that `the defendants, by their agents, servants, locomotives, and railroad cars, negligently and carelessly ran over, maimed, and killed certain cattle belonging to plaintiff, to wit, one cow, of the value of $25, and one heifer, of the value of $10, for which he asks judgment.' It was objected by the defendant on appeal...

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