Phillips v. St. Louis, Memphis & Southeastern R. Co.

• Decision Date: 10 May 1904
• Citation: 80 S.W. 926,107 Mo.App. 203
• Parties: PHILLIPS, Respondent, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

80 S.W. 926

107 Mo.App. 203

PHILLIPS, Respondent, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 10, 1904

Appeal from New Madrid Circuit Court.--Hon. H. C. Riley, Judge.

Action for double damages, appeal from judgment in favor of plaintiff.

Judgment affirmed.

Moses Whybark and M. A. Dempsey for appellant.

(1) The statute relied upon is penal and the burden lay upon the plaintiff to bring himself clearly within the statute, both as to his cause of action and the amount of damages for which a penalty was claimed. Penal statutes must be strictly construed. Nanz v. Railroad, 87 Mo. 280; Fusz v Spaunhorst, 67 Mo. 256; Kreitzer v. Woodson, 19 Mo. 327; Howell v. Stuart, 54 Mo. 400. (2) At common law it is the duty of the owner of cattle to fence them in. Under our statute it is the duty of the owner of land to fence them out and the cattle owner is not liable for trespass by his cattle unless they break through a lawful enclosure. Bradford v. Floyd, 80 Mo. 211; Gorman v. Railroad, 26 Mo. 445. (3) Section 1105, article 2 chapter 12, requires a railroad to fence the right-of-way "where the same passes through, along or adjoining enclosed or cultivated fields or uninclosed lands." The statute is for the benefit of the adjoining owner and not for the benefit of strangers or owners of land not adjoining the right-of-way. Berry v. Railroad, 65 Mo. 175; Harrison v. Railroad, 71 Mo. 384; Peddicord v Railroad, 85 Mo. 160; Busby v. Railroad, 81 Mo. 43; Ferris v. Railroad, 30 Mo.App. 122; Ackley v. Railroad, 30 Mo.App. 657; Carpenter v. Railroad, 25 Mo.App. 110.

J. V. Conran for respondent.

Jackson v. Railroad, 43 Mo.App. 324; Trice v. Railroad, 49 Mo. 438; Kingsbury v. Railroad, 156 Mo. 388; Dean v. Railroad, 54 Mo.App. 647.

GOODE, J. Bland. P. J., and Reyburn, J., concur.

OPINION

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 track 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 can not 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. Railroad, 65 Mo. 172; Peddicord v. Railroad, 85 Mo. 160; Dean v. Railroad, 54 Mo.App. 647; Emerson v. Railroad, 35 Mo.App. 621; Bord v. Railroad, 36 Mo.App. 151; Jackson v. Railroad, 43 Mo.App. 324.

In Berry v. Railway, 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 requiring railway companies to fence was primarily for the benefit of adjoining proprietors and that the cattle of a stranger which were on the premises of an adjoining proprietor without right, were not protected. It was held further that if the field adjacent to the railroad was sufficiently fenced, that was all the protection strangers were entitled to and as to them railway companies need not build a fence in that contingency. That case requires the field to be sufficiently fenced and such fence as between strangers and the railway company satisfies the statute and relieves the company from fencing its right-of-way. It was said in Peddicord v. Railroad, supra.

"That if a railway company owns a road running through the inclosed and cultivated fields of A and does not have its road fenced as the law directs, it will not be liable for damages done to the cow of B, provided the fence along A's field was a lawful fence. That, notwithstanding B's cow got onto the company's track from A's field where there was no...