Kingsbury v. Missouri, Kansas & Texas Railway Company

• Decision Date: 15 May 1900
• Citation: 57 S.W. 547,156 Mo. 379
• Parties: KINGSBURY v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

57 S.W. 547

156 Mo. 379

KINGSBURY v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

May 15, 1900

Transferred from Kansas City Court of Appeals.

Affirmed.

Geo. P B. Jackson for appellant.

(1) The court improperly permitted a recovery for damages sustained at different times from the incursion of cattle at one time and of hogs at other times. (2) Plaintiff was not entitled to recover the value of the corn eaten by his own hogs which he turned into the field. (3) Defendant discharged its duty by fencing the sides of its track. It was not required to maintain fences across the branch, and no liability resulted from its omission to do so. Sec. 2611, R. S. 1889; Marshall v. Railroad, 51 Mo. 138. (4) Part of the damage complained of was occasioned by hogs which entered plaintiff's field from the unfenced "gully" between the fences of plaintiff and defendant. When the court found for the entire amount claimed it necessarily included the damage thus occasioned and to that extent the finding was contrary to the instructions five and six given by the court. (5) Section 2611 Revised Statutes is a penal statute and should be strictly construed. Parish v. Railroad, 63 Mo. 286; State ex rel. v. Railroad, 19 Mo.App. 104. (6) The statute is of a dual character. First. A police regulation for the protection of the traveling public in preventing stock from getting on the track, for the enforcement of which a penalty is imposed in double the amount of damage done. Second. A provision for inclosing the farms of adjoining owners, who are entitled to compensation for any damage sustained by reason of a failure by a railroad company to erect the fences required by statute. The statute provides as such "compensation" double the loss sustained. The law has been sustained as to the penalty, but in so far as it allows double compensation it is unconstitutional. Barnett v. Railroad, 68 Mo. 62. (7) The law restraining swine was in force in Howard county, and the defendant was therefore not required to construct a fence which would prevent the passage of hogs. R. S. 1889, secs, 2611, 2612 and 5033; Laws of 1885, p. 166; Laws of 1887, p. 193. The general law declaring what is a "lawful fence" applies to railroads. King v. Railroad, 79 Mo. 328. "In a county where the hog law is in force, a railroad company is relieved from the duty of fencing against swine merely to prevent their getting upon its tracks," but the legal obligation to maintain lawful fences remains. Stanley v. Railroad, 84 Mo. 631.

R. P. Talbot and Major & Pritchett for respondent.

(1) Conceding, which we do not, that it would be improper for the court to permit a recovery for damages sustained at different times from the incursion of cattle at one time, and of hogs at another time, it can not be contended successfully that the court did any such thing in this case. The record shows that all the damage recovered in this case occurred on the 15th day of October, 1896, and was caused by cattle crossing the defendant's right of way, through the culvert, and entering plaintiff's corn field and destroying the corn therein. (2) The evidence shows that the culvert through which the stock committing the damage in this case passed, was wholly upon the right of way of the defendant; that the end where the cattle entered said culvert as well as the end where they made their exit was within the said right of way; that the defendant, instead of carrying its fence along, by and past said openings, carried the same over and on top of said culvert thus leaving the openings of the culvert entirely unfenced and with nothing to hinder or prevent any kind of stock, no matter how large, going in and upon the land of the adjoining land-owner on the east side of the right of way. The building of a fence on top the fill close to the track, as in this case, can not possibly meet the object, purpose and requirement of the statute. Marshall v. Railroad, 51 Mo. 140.

OPINION

BRACE, P. J.

This is an action for double damages under section 2611, Revised Statutes 1889, commenced before a justice of the peace of Howard county, taken thence by appeal to the Howard County Circuit Court, where the plaintiff had judgment for $ 100, and the defendant appealed. The case was sent to the Kansas City Court of Appeals from which it was certified to this court, on the ground that its decision involved a construction of article 2, sections 20, 21 and 30, of the Constitution of the State of Missouri, and section 1 of the 14th Amendment of the Constitution of the United States. The complaint in substance charged that the defendant failed to erect and maintain lawful fences, gates and cattle-guards where its road passed along and adjoining plaintiff's farm; and that by reason of such failure on or about the 15th of October, 1896, certain hogs and other animals, not the property of the plaintiff, escaped from the defendant's railroad and came upon a certain field of said farm, and destroyed and ate up about sixty barrels of his corn, to the damage of plaintiff in the sum of fifty dollars. There was no formal plea on the part of the defendant, and the case was tried before the court without a jury.

The evidence tended to prove that on or about the 15th of October, 1896, while plaintiff was absent from home, eighteen or twenty head of cattle belonging to some person unknown, came into plaintiff's inclosed twelve-acre field adjoining defendant's right of way, on which was a growing crop of corn in the roasting ear stage, and damaged the same to the amount of fifty dollars. That they came from the opposite side of the railroad through a culvert for a water way under an embankment on which the defendant's tracks were laid. That the defendant's fences on each side of its road as they approached this culvert deflected towards the track and passed over the embankment within a few feet of the track, thus leaving no fence or gate or cattle-guard of any sort on either side of defendant's right of way, to obstruct the passage of the cattle through the culvert into plaintiff's field. There was also some evidence tending to prove that hogs entered this field, some through this culvert, and some from other points of defendant's right of way.

At the close of the evidence the defendant prayed the court to declare the law of the case to be as follows:

"1. The court instructs the jury that, upon the pleadings and under the evidence in this case, your verdict must be for the defendant.

"2. The court instructs the jury that if you believe from the evidence that at the time of the alleged damage for which the plaintiff sues in this action, the law restraining hogs from running at large was in force in Howard county, and that the damage sued for in this case was occasioned by hogs which are alleged to have passed from the defendant's right of way into the field of plaintiff adjoining said right of way, then the plaintiff is not entitled to recover under section 2611 of the Revised Statutes of 1889, as attempted in this action and your finding must be for the defendant.

"3. The court instructs the jury that if you find from the evidence that the law restraining hogs from running at large was in force in Howard county, at the time of the injuries sued for in this case, then the defendant was not at that time required to construct or maintain fences with the posts nearer than sixteen feet apart or with wire, planks or poles nearer than three feet to the ground, and even if you believe from the evidence that hogs passed from the defendant's right of way into the plaintiff's field and caused the damage complained of, and that the hogs so entered the plaintiff's field at a place or places where the defendant did not have a fence with wires, planks or poles extending to the ground and close enough together to prevent hogs from passing through, still plaintiff can not recover, and your finding must be for the defendant, provided you also find from the evidence that the law restraining hogs from running at large was in force in Howard county at that time.

"4. The court farther instructs you that that part of section 2611 of the Revised Statutes of Missouri of the year 1889, which authorizes the awarding of double damages for injuries sustained by persons in consequence of hogs or other animals passing from the right of way of a railroad to the land of adjoining proprietors, is unconstitutional and void, and for that reason the plaintiff can not recover in this suit.

"5. The court instructs the jury that even if you believe from the evidence that any hogs entered the plaintiff's field and did damage to his crop, as complained of in the petition, still if you also believe from the evidence that there was a space of ground lying between the fence which the defendant had erected along the east side of its track, and another fence which was upon the west side of the plaintiff's inclosure, and that said strip of ground was open to a public...