Hughes v. Hannibal & St. Jo. R.R. Co.

• Decision Date: 31 October 1877
• Citation: 66 Mo. 325
• Parties: HUGHES v. HANNIBAL & ST. JO. R. R. CO., Appellant.
• Court: Missouri Supreme Court

66 Mo. 325

HUGHES

v.HANNIBAL & ST. JO. R. R. CO., Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Macon Court of Common Pleas.--HON. WILLIAM A. GUYSELMAN, Judge.

James Carr and H. B. Leach for appellant.

J. L. Berry for respondent.

HOUGH, J.

This was an action to recover the value of a heifer accidently drowned in an abandoned tank or well, situated in the open prairie in Macon county, upon the line of defendant's right of way, four feet eight inches of its diameter being on the defendant's land, and four feet thereof, on the land of the adjacent proprietor.

The plaintiff bases his right to recover upon the alleged negligence of defendant in failing to enclose or cover said well. No statutory liability is imposed upon the defendant for injuries like the one complained of, although occasioned by its failure to erect and maintain fences as required by the 43rd section of the law in relation to railroad companies. The liability of the defendant is therefore, such only as is imposed by the common law. Lafferty v. Han. & St. Jo. R. R., 44 Mo. 291; Ill. Cent. R. R. Co. v. Carraher, 47 Ill. 333.

Who made the excavation does not appear. It was used by the defendant for the purpose of a tank or watering place until a tank was erected at another place near by, when the well was abandoned and left uncovered and unenclosed. To divest the case of all embarrassing incidents, so far as the plaintiff is concerned, we will suppose the excavation to have been made by the defendant, wholly upon its own lands. So far as the present inquiry is concerned, the railroad company stands upon precisely the same footing as other land owners, and only those acts required of natural persons, under like circumstances, can be required of the defendant.

In this State, and in others similarly situated, it has been held that the owner of cattle may permit them to run at large and stray upon the unenclosed lands of others without incurring any liability for such technical trespass, but it has never been held that the owners of the unenclosed lands are required to make them safe for the pasturage of such stray cattle. The existence of any such duty, on the contrary, is distinctly denied. Ill. Cen. R. R. Co. v. Carraher, 47 Ill. 333. The law on this subject is so perspicuously and succinctly stated by Chief Justice Gibson, in the case of Knight v. Abert, 6 Penn. St. 472, that we transcribe and adopt his views as applicable to and decisive of the present case. In th case the defendant was the owner of unenclosed woodlands, in which he had dug an ore pit. The plaintiff's ox had wandered on the land and fallen into the pit, and...