Nolon v. Chicago & Alton R.R. Co.

• Decision Date: 22 November 1886
• Citation: 23 Mo.App. 353
• Parties: PATRICK NOLON, Respondent, v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

23 Mo.App. 353

PATRICK NOLON, Respondent,

v.THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 22, 1886.

APPEAL from Moberly Court of Common Pleas, HON. G. H. BURCKHARTT, Judge.

Affirmed.

The case and facts stated in the opinion.

MACFARLANE & TRIMBLE, for the appellant.

I. Defendant was not liable to plaintiff, under section 809, Revised Statutes, for the loss of his mule. Fences are required for the benefit and protection of the adjacent land owner alone. Berry v. Railroad, 65 Mo. 172; Harrington v. Railroad, 71 Mo. 384; Peddicord v. Railroad, 85 Mo. 160.

II. The land owner may waive the right, and it will be a defence to a suit for damages under section 809, Revised Statutes. Thomas v. Railroad, 82 Mo. 541; Ellis v. Railroad, 48 Mo. 233. A tenant of the proprietor occupying the land with notice of the agreement, would in like manner be bound by the waiver of his landlord. Thomas v. Railroad, supra; Railroad v. Washburn, 97 Ill. 253; Warren v. Railroad, 41 Iowa, 484. Knowledge of such facts as would put a reasonably prudent man on such inquiry as, if followed up, would lead to the knowledge of the agreement, is sufficient notice. This information plaintiff had. Major v. Buckley, 51 Mo. 227; Meier v. Blume, 80 Mo. 184.

III. Plaintiff was guilty of such contributory negligence as should defeat a recovery. His negligence was wilful. Doyle v. Railroad, 21 Mo. App. 416.

IV. The statute (sect. 809) did not apply to the road at the place plaintiff's mule got upon the track. Railroads are public highways. Const. Mo., art. 12, sect. 13; Rev. Stat., sect. 821. The statute does not apply in case fencing would interfere with the business of the public, or the corporation, as at public crossings, depots, etc. The reason is equally obvious why it should not apply here. Cooley Const. Lim., 578; Morris v. Railroad, 58 Mo. 78.

W. A. MARTIN, for the respondent.

I. There is no claim of actual notice, but only of constructive notice. Even this is not shown. Besides, the positive requirement of the statute is to fence. Rev. Stat., sect. 809. And the alleged agreement is not satisfactorily proved.

II. The question of contributory negligence has nothing to support it in this case. The evidence nowhere shows any necessity for breaking the fence along the old road in order to grade the new; in fact there is no evidence on that question. Plaintiff had no notice of the verbal agreement claimed by defendant--was on the ground rightfully, and his rights were fixed before anything was done by defendant or Hamilton to put him on inquiry.

ELLISON, J.

This suit was commenced before a justice of the peace for double damages under section 809, for killing a mule belonging to plaintiff.

John Hamilton owned a tract of enclosed land through which defendant's road ran. In order to straighten its road through Hamilton's land, defendant had determined to build a new track, and for this purpose had purchased from Hamilton the right of way. The new road left the old one on the east side of Hamilton's land, and came to it again on the west side.

Between the new right of way and the old road a narrow strip of Hamilton's land was left coming to points at each end and widening in the center to something over one hundred feet. In the contract of purchase, defendant and Hamilton agreed that before the grading was done, defendant should build a fence on the north side of the new line or right of way; this requirement was incorporated in the deed. It was also agreed that the fence on the north side of the old road might be moved, and the materials used in making the new fence, thus leaving both roads, the one being constructed and the one being operated, enclosed by the same fences. This latter agreement was not in the deed.

After the deed had been taken and recorded, and after defendant had located, marked out and commenced clearing and grading the new road, plaintiff came upon the ground with teams for the purpose of obtaining work in grading the new road. By permission of Hamilton, and under an agreement to pay therefor, plaintiff camped with his teams on this strip of land lying between the two roads, one hundred and ten feet from the track, and sixty feet from the new road.

Afterwards defendant commenced building the new fence and removing the material from the old one. The laborers working on the new road were hauling from the old to the new road, and, with plaintiff's knowledge, had broken the fence. With full knowledge of these facts, plaintiff kept his mules between the two roads. One of them got through the broken fence upon the track, and was struck and killed by a passing train. There was no...