Radcliffe v. St. Louis, I.M.&S. Ry. Co.

• Decision Date: 06 December 1886
• Parties: RADCLIFFE v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

90 Mo. 127

RADCLIFFE

v.ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

December 6, 1886.

Appeal from circuit court, Scott county.

Action to recover the value of a mare killed upon the defendant's railroad track. Judgment for plaintiff. Defendant appeals.

T. J. Portis, for appellant, St. Louis, I. M. & S. Ry. Co.

HENRY, C. J.

This suit originated in a justice's court in Scott county, and the following is the statement of his cause of action filed by plaintiff with the justice: Plaintiff states that defendant is an incorporated company under the laws of the state of Missouri; that on the twenty-eighth day of September, 1882, it was the owner of and operating a railroad with cars and locomotives; and that, on the day and year last aforesaid, within the corporate limits of the village of Oran, in Sylvania township, in Scott county, at a point on the track of defendant's railroad where there were no fences, and where the land was not laid out in streets in said village, and where the same passed along and through inclosed lands, and not at a public crossing of said road, the defendant, by its agents and servants running its locomotives and trains of cars at a great rate of speed through said village, negligently and carelessly ran the same upon and over a mare of plaintiff, of the value of $100, and thereby killed said mare; that defendant neglected to ring the bell of said locomotive, or sound the whistle thereon, where said locomotive entered the corporate limits of said village; wherefore plaintiff asks judgment for $100.

This is an appeal from the judgment of the circuit court in favor of plaintiff; and the first point made by appellant's counsel is that “the statement fails to allege that the mare entered upon defendant's road at a point where the same was, by the statute, required to be fenced.” The statute contains no such restriction upon the right of the owner of the injured cattle to recover. It provides that when any animal is killed or injured by the cars, etc., used on any railroad in this state, the owner of such animal may recover its value in an action against the company, “without any proof of negligence; * * * but this section shall not apply to any accident occurring on any portion of such road that may be inclosed by a lawful fence, or in the crossing of a public highway.” Section 2124. Does the proviso mean that the section shall not apply to an injury occurring on a portion of the road which the defendant had the option to fence or not, but had left uninclosed?

In Tiarks v. St. Louis & I. M. Ry. Co., 58 Mo. 45, this court said: “The fifth section of the damage act (now section 2124) was designed to furnish an inducement for the roads to fence their tracks where it was not deemed absolutely necessary to compel them to do so. By that section, if the road is not fenced, and animals are killed at a place where the law does not require fences to be erected, the law raises the inference of negligence, and the corporation will be liable.” So, in Edwards v. Hannibal & St. J. R. Co., 66 Mo. 568, the court held that the fifth section of the damage act simply dispenses with proof of negligence in the first instance when animals are killed where there are no fences, but where fences might lawfully have been erected.

Conceding the correctness of the above enunciations, it was not necessary to allege that the defendant was required to fence its road where the mare entered upon it. Nor was it necessary to allege in express terms that at that point, while not required to fence, the company was at liberty to fence....