Kaes v. Missouri Pacific Ry. Co.

• Decision Date: 07 January 1879
• Citation: 6 Mo.App. 397
• Parties: PHILIP KAES, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 397

PHILIP KAES, Respondent,

v.MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 7, 1879.

1. In Missouri there can be no such thing as a trespass by cattle upon unenclosed lands.

2. Where cattle are killed by a locomotive on a railroad running along unenclosed lands, but not at a railroad-crossing, the fact that the cattle got upon the track from land adjoining that of the owner of the cattle, and upon which they had strayed, is no defence to an action for damages against the railroad.

3. The statutory provision for double damages in such cases of injury to stock on a railroad is not unconstitutional; it is a police regulation, for the benefit of the travelling public.

APPEAL from St. Louis Circuit Court.

Affirmed.

T. J. PORTIS and E. A. ANDREWS, for appellant: There must be direct or actual collision, and the injury must result from such actual contact, to make the railroad responsible for the penalty provided for in sect. 43.-- Lafferty v. Railroad Co., 44 Mo. 291; Railroad Co. v. Haskett, 10 Ind. 409. It must be shown that the animals came upon the railroad land from off the plaintiff's adjoining land at a point required by said section to be fenced, and where it was not so fenced.-- Ricketts v. Railroad Co., 12 Eng. Law & Eq. 520; Jackson v. Railroad Co., 25 Vt. 150; Brooks v. Railroad Co., 13 Barb. 593. It must be affirmatively shown that the animals came upon defendant's track without any carelessness or negligence on the part of the plaintiff contributing thereto.-- Keech v. Railroad Co., 17 Md. 32; Railroad Co. v. Methaven, 21 Ohio St. 586; Jones v. Railroad Co., 42 Wis. 306; Pitzner v. Shimmick, 39 Wis. 129; Fletcher v. Railroad Co., 64 Mo. 484. The double-damage stock-law is unconstitutional.-- Railroad Co. v. Austin, 21 Mich. 408; Seymour v. McCormick, 16 How. 480; Railroad Co. v. Baty, Cent. L. J. 148, February 22, 1878.

WOOD & WHITNEY, for respondent: It is not negligence, in this State, to permit animals to run at large, or in unenclosed fields; and when such animals stray into unenclosed fields they are not trespassers.-- Gorman v. Railroad Co., 26 Mo. 445; McPheeters v. Railroad Co., 45 Mo. 22; Clark v. Railroad Co., 36 Mo. 220; Tarwater v. Railroad Co., 42 Mo. 193; Mumpower v. Railroad Co., 59 Mo. 245; Berry v. Railroad Co., 65 Mo. 172. Proof of negligence on the part of the defendant was not necessary.-- Cary v. Railroad Co., 60 Mo. 213, and cases cited; Hall v. Railroad Co., 59 Mo. 113. When it is shown that the cattle were killed at a point on the road where it was the duty of the road to fence, a primâ facie case is made.-- Walther v. Railroad Co., 55 Mo. 271; Fickle v. Railroad Co., 54 Mo. 220; Lantz v. Railroad Co., 54 Mo. 228. The act requiring railroad fences is constitutional.-- Trice v. Railroad Co., 49 Mo. 438. And is valid as to the Pacific Railroad Company, through which company defendant claims exemption from the requirements of the act.-- Gorman v. Railroad Co., 26 Mo. 441.

LEWIS, P. J., delivered the opinion of the court.

This suit was commenced before a justice of the peace on account of the killing of three mules of the plaintiff, valued at $600, on December 24, 1876, by the locomotive and cars of the defendant, “at a point on the track of defendant's railroad where the same passes along and adjoining unenclosed lands, and not at a private or public crossing of said road.” The plaintiff was successful before the justice, and, on defendant's appeal to the Circuit Court, again recovered, by the verdict of a jury for $600; which sum was doubled in the amount of the judgment.

The testimony tended to show that the plaintiff owned enclosed lands on the north and south sides of the railroad, and that adjoining his land on the east was an unenclosed tract which belonged to an association known as the Park of Fruits. There was a division-fence between the plaintiff's land and that of the Park of Fruits, which had been suffered to get out of repair. The railroad-fence along the plaintiff's field was not a lawful fence as required by the statute, nor was that along the unenclosed land of the Park of Fruits. The testimony left it uncertain whether the mules had got upon the track from the plaintiff's field where he was keeping them, or had passed out upon the unenclosed land and thence gone upon the railroad where they were killed. The defendant asked for a series of instructions whose leading ideas are embodied in the two following:--

“If the jury believe from the evidence that the mules of plaintiff entered on the track of defendant, not from plaintiff's land, but from the land of another, and that said mules were not lawfully on said lands, they will find for the defendant.

The court instructs the jury that if they believe from the evidence in this case that the mules in question strayed from the plaintiff's own land or enclosure by reason of his own fence being down, and having been left down by him some months previously thereto, after he knew it was in that condition, on to the land of another, without that other's consent, then the mules were trespassers on that other's land; and that if while so trespassing they strayed or passed from said land on to the railroad and were killed, plaintiff cannot recover, and they must find for defendant.”

The court refused these instructions, and hereupon arises the principal question for our determination: Does the statutory liability for insufficient fencing arise in favor of one not the owner or proprietor of the unenclosed land adjoining the railroad at the place where the animals killed had found access to the track?

The act of February 18, 1875, provides as follows: “Every railroad corporation * * * shall erect and maintain lawful fences on the sides of the road where the same passes through, along, or adjoining enclosed or cultivated fields or unenclosed lands, with openings or gates therein, * * * at all necessary farm-crossings of the road, for the use of the proprietors or owners of the lands adjoining such railroad, and also to construct and maintain cattle-guards where fences are required; * * * and until fences, opening-gates, and farm-crossings, and cattleguards, as aforesaid, shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done, by its agents, engines, or cars, to horses, cattle, mules, or other animals on said road, or by reason of any horses, cattle, mules, or other animals escaping from or coming upon said lands, fields, or enclosures, occasioned in either case by the failure to construct or maintain such fences or cattle-guards.” It is contended for the defendant that, so far as this law operates for the benefit of private persons, it applies to none but the adjoining land-owners; and that if, consequently, the plaintiff was not an adjoining owner at the place where, because of the defendant's failure to maintain a lawful fence, his mules were killed, he can claim no benefit of the statute, and the defendant ought to recover.

We do not perceive how a fair grammatical construction of the statute limits the purposes of the fence to the use of the adjoining land-owner. To erect and maintain the fence is first imposed on the corporation as a general duty. This is primarily a police regulation for the safety of the travelling public. The benefit, if any, to the land-holder is merely incidental. The fence being thus erected under a general requirement, it is next commanded, for the use of the proprietors or owners of the lands adjoining such railroad, that there shall be “openings and gates therein * * * at all necessary farm-crossings.” There is a clear, logical connection between the “openings and gates at farm-crossings” and the “use of the proprietors or owners of the land adjoining.” But to suppose the Legislature saying that the fence also is to be erected “for the use of the proprietors,” etc., is utterly to obscure and cast aside the great and leading purposes of that requirement as a police regulation. There is nothing in the usages of our language to sanction such an interpretation of the words as we find them placed among the sentences in this law.

We are referred to several decisions of high authority upon statutes elsewhere which require railroad corporations to fence their tracks. In considering those decisions it must not be forgotten that they were made with reference to a state of the general law concerning enclosures precisely the reverse of that which prevails in Missouri. By the common law, a land-owner was not required...