Phillips v. St. Louis, M. & S. E. R. Co.

• Decision Date: 10 May 1904
• Citation: 107 Mo. App. 203,80 S.W. 926
• Court: Missouri Court of Appeals
• Parties: PHILLIPS v. ST. LOUIS, M. & S. E. R. CO.

80 S.W. 926

107 Mo. App. 203

PHILLIPS v. ST. LOUIS, M. & S. E. R. CO.

St. Louis Court of Appeals. Missouri.

May 10, 1904.

RAILROADS—DUTY TO FENCE TRACKS—INJURIES TO CROPS—LAND NOT CONTIGUOUS TO RIGHT OF WAY.

1. Under Rev. St. 1899, § 1105, requiring railroads to erect and maintain fences for the use of the proprietors or owners of the land adjoining the railroad, and imposing a liability in double the amount of damages done to stock, or by reason of stock escaping from or going on the lands, occasioned in either case by the failure to construct or maintain such fences, a railroad is liable for damages done to a crop by cattle which got onto the land on which the crop was on account of the railroad's tearing down the fence adjacent to its right of way, though the land on which the crop stood was not adjacent to the railroad tracks, but was some distance back from it, where there was no fence between such land and the land contiguous to the railroad track.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Action by A. R. Phillips against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Moses Whybark, for appellant. J. V. Conran, for respondent.

GOODE, J.

Plaintiff had a field on which a crop of corn was growing, inclosed by the same fence that inclosed the field of his neighbor. The neighbor's field lay between him and the railway company's right of way. The fence around the inclosure was good and sufficient; was, in fact, a lawful fence. When the railway company built its line, its servants threw down the fencing at various points, and left it down without constructing cattle guards or fencing along its right of way. The consequence was that stock got in through the openings and destroyed plaintiff's crop. Plaintiff sued for damages, and obtained judgment.

The only contention made here that demands attention is that, as plaintiff's land does not adjoin the railway company's right of way, he is not within the protection of the double damage statute. The rule of law that the statute requiring railway companies to fence their tracks under penalty of responding in double damages to those who sustain injury by their failure to do so inures only to the benefit of adjoining proprietors, and that a landowner who is not an adjoining proprietor cannot recover on the statute from a railway company, has no application except when there is a lawful fence between the lands of the plaintiff (he not being an adjoining proprietor) and the land of his neighbor which is contiguous to the right of way. If the plaintiff's land is not separated from the land which adjoins the railway company's right of way by a lawful fence, or if there is no lawful fence between his land and the right of way, he may recover double damages from the company for failure to fence. Berry v. R. R., 65 Mo. 172; Peddicord v. R. R., 85 Mo. 160; Dean v. R. R., 54 Mo. App. 647; Emmerson v. R. R., 35 Mo. App. 629; Board v. R. R., 36 Mo. App. 153; Jackson v. R. R., 43 Mo. App. 325.

In Berry v. Railway Co., 65 Mo. 172, the plaintiff's animal went into the field of one Conger through which a railroad track passed, and from thence through a gap onto the right of way, where it was killed by a train. The contention was made that Berry could not recover because his land was not adjacent to the right of way. It was held that the statute...