Morrison v. Kansas City & Westport Belt Railway Company

• Decision Date: 04 March 1912
• Citation: 145 S.W. 137,162 Mo.App. 662
• Parties: SYLVESTER H. MORRISON, Respondent, v. KANSAS CITY & WESTPORT BELT RAILWAY COMPANY AND METROPOLITAN STREET RAILWAY COMPANY, Appellants
• Court: Kansas Court of Appeals

145 S.W. 137

162 Mo.App. 662

SYLVESTER H. MORRISON, Respondent, v. KANSAS CITY & WESTPORT BELT RAILWAY COMPANY AND METROPOLITAN STREET RAILWAY COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

March 4, 1912

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas and Charles N. Sadler for appellants.

S. S Gundlach for respondent.

OPINION

BROADDUS, P. J.

This suit was instituted in a justice's court where it was tried and appealed to the circuit court of the county where it was tried anew, and, the judgment being for the plaintiff, appeal was taken to this court.

The statement reads as follows: "That on or about the first part of July, 1909, plaintiff was the owner and possessor of a certain mare, to-wit, a chestnut mare, about eight years old, of the value of one hundred and fifty dollars; that said mare, casually and without the fault or procurement of plaintiff, strayed in and upon the tracks and grounds occupied by said defendant road, in said Washington township, at a point about 200 yards northwest of where defendants' said railroad track crosses the public road known as Eighty-fifth street, where said track passes through defendants' unenclosed lands, at a point where said defendants were, by law, required to erect and maintain good and lawful fences and cattle guards, along the sides of its said roads, not at a public crossing, nor within an incorporated city, town or village; that said mare strayed and went upon said tracks and ground, by reason of the failure and neglect of said defendants to erect and maintain good and lawful fences and cattle-guards on its said road, where said mare got upon same, as aforesaid; that defendants, not regarding their duty in that respect, so ran and managed its said car, or cars, as to run the same over and against said mare, and did so maim, cripple and injure said mare that said mare had to be killed, about said date in July, 1909, to plaintiff's damage, in the sum of one hundred and fifty dollars; that by reason of section 1105, of the Revised Statutes of Missouri 1899, plaintiff is entitled to recover of the defendants double the said amount of damages, to-wit, three hundred dollars."

The evidence shows that the road was, when originally built, a steam railroad, but afterwards converted into an electric line, known as the Kansas City & Westport Belt Railway Company. Neither of the defendant companies erected fences and cattle-guards along the right of way of the railroad, but the farmers owning the adjoining lands had erected such fences. Although the location is described by the name of a street, the fact is there was no street, but the lands adjoining were unenclosed except where fenced by the adjoining owners. The plaintiff owned and occupied five acres adjoining the railroad which had been fenced by its former owner. This fence was not a lawful fence such as to restrain stock. The evidence of both parties was to the effect that the fence was insufficient to turn stock. The evidence tended to show that plaintiff's animal escaped from his premises and got onto the railroad and was struck and so severely injured that she had to be killed. Proof was made of her value. The evidence also tended to show that at the time when plaintiff's animal was struck the railway was operated by the Metropolitan Street Railway Company....