Hill v. The Missouri Pacific Railway Company

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Burgess, J.
• Citation: 26 S.W. 576,121 Mo. 477
• Parties: Hill, Appellant, v. The Missouri Pacific Railway Company
• Decision Date: 08 May 1894

26 S.W. 576

121 Mo. 477

Hill, Appellant,
v.
The Missouri Pacific Railway Company

Supreme Court of Missouri, Second Division

May 8, 1894

Certified from St. Louis Court of Appeals.

Affirmed.

John W. Booth for appellant.

(1) At common law a person using dangerous instruments or mechanisms does so at his peril, and is responsible for any damages not caused by natural occurrences, or by the interposition of strangers. Wharton's Law of Negligence [1 Ed.], p. 716, sec. 851. (2) At common law a railroad company, though not bound to maintain fences sufficient to keep cattle off its line, is bound to use every reasonable care to prevent them from straying on the line, and when on the track, however negligently or unlawfully, if they are negligently run down, the road is liable. Wharton's Law of Negligence [1 Ed.], pages 749 and 750, sec. 886. (3) In those states where the English common law requiring the owner of cattle to fence them in is not in force, it is not negligence in the owner of cattle to permit them to stray at large. Hence cattle thus straying upon uninclosed lands are not trespassers. Wharton's Law of Negligence [1 Ed.], pp. 744, 745, 746, sec. 883. (4) The diligence to be exercised by an engineer in avoiding cattle on the road is such as would be exercised under such circumstances by good engineers having in view the safety of their trains. Wharton's Law of Negligence [1 Ed.], p. 755, sec. 894. (5) It is at common law, the duty of an engineer to watch the track in advance as far as he can consistently with his other duties; and where through neglect to perform that duty stock is run over, the railway company is liable in damages, even though the stock is on the track through the wrongful act or neglect of the owner. Wharton's Law of Negligence [1 Ed.], pp. 755, 756, secs. 895, 896, and note 3 to sec. 894, p. 755. (6) The foregoing rules of the common law are the law in this state. Boggs v. Railroad, 18 Mo.App. 274; Wallace v. Railroad, 74 Mo. 594; Kendig v. Railroad, 79 Mo. 207. (7) The decisions of the Kansas City court of appeals to the effect that with respect to cattle on the track at points where the company is not bound to fence, the duty of the company to use reasonable care to avoid injury only arises when the cattle are discovered to be on the track (Hoffman v. Railroad, 24 Mo.App. 546, and Welch v. Railroad, 20 Mo.App. 477) are not well considered cases, and are not supported by the decisions of the supreme court. Wallace v. Railroad, 74 Mo. 594; Kendig v. Railroad, 79 Mo. 207. (8) The petition states a good cause of action. LeMay v. Railroad, 105 Mo. 361; Shaw v. Railroad, 104 Mo. 648; Kellny v. Railroad 101 Mo. 67; Pope v. Railroad, 99 Mo. 400; Donaldson v. Butler Co., 98 Mo. 163; Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad, 75 Mo. 295. (9) And there is no misjoinder of several causes of action, and there is no mingling in one count of several causes of action. Minter v. Railroad, 82 Mo. 128; Mack v. Railroad, 77 Mo. 232; Braxton v. Railroad, 77 Mo. 455; Iba v. Railroad, 45 Mo. 470; Boone v....