Hill v. The Missouri Pacific Railway Company

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

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. Railroad, 20 Mo.App. 232. (10) The legal effect of section 4428 of the Revised Statutes of 1889, according to repeated decisions of the supreme court is not merely to give a statutory right of action, but to establish a legal presumption of negligence, available in a common law action for negligently running over and killing stock. 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. Railroad, 20 Mo.App. 232.

H. S. Priest and W. S. Shirk for respondent.

(1) There was no error in sustaining respondent's demurrer. Plaintiff's petition is bad. It shows upon its face that any cause of action which plaintiff may have had, by reason of the facts alleged in said petition, was bound by the statute of limitations, applicable to such action. The petition was filed October 16, 1891. The cause of action attempted to be alleged arose November 8, 1889, more than one year prior to the bringing of the suit. The time within which such action may be brought is limited by section 4429 Revised Statutes, 1889, to one year. (2) Where a petition on its face shows that the time in which the suit may be brought has elapsed, the defect may be reached by demurrer. Henoch v. Chaney, 61 Mo. 129, and cases cited; St. Louis Gas L. Co. v. St. Louis, 11 Mo.App. 55, on 64, and cases cited. (3) The enactment of section 4428, Revised Statutes, 1889, repealed the common law, as to all rights, actions and causes of action, coming within its provisions. State v. Boogher, 71 Mo. 631; State v. Slaughter, 70 Mo. 484. (4) The facts alleged in the petition bring it within the terms of section 4428, and, as that statute covers the whole ground, and furnishes a full remedy, the plaintiff is confined to his statutory remedy -- the common law applicable to the facts being repealed, and the action must be brought within the time limited in such statute. Sedgwick on Stat. Law, 76; State v. Bittinger, 55 Mo. 596; Young v. Railroad, 33 Mo.App. p. 509; Suckie v. Railroad, 67 Mo. 245; Wood v. Railroad, 58 Mo. 109; Collins v. Railroad, 65 Mo. 230; Edwards v. Railroad, 66 Mo. 567. (5) The double damage act (R. S. 1889, sec. 2611) and section 4428, commonly called the single damage act, furnish a complete remedy for the killing or injury of an animal by being struck with cars or engines, under any possible state of facts, where such animal got upon the right of way at a point where the railway company is required to fence, or where it may lawfully fence. This case is wholly different from the case of Boggs v. Railroad, 18 Mo.App. 274. In that case the mule was not struck by the cars, but ran against a wire fence. There was then no statute which covered such a case. But at the time this cause of action arose, the common law governing such a state of facts had long since been repealed. Sess. Laws, Mo. 1885, p. 92, now sec. 2612, R. S. 1889. See authorities to points 3 and 4. The...