Riggs v. St. Francois County Ry. Co.

• Decision Date: 05 June 1906
• Citation: 96 S.W. 707,120 Mo. App. 335
• Parties: RIGGS v. ST. FRANCOIS COUNTY RY. CO.
• Court: Missouri Court of Appeals

96 S.W. 707

120 Mo. App. 335

RIGGS v. ST. FRANCOIS COUNTY RY. CO.

St. Louis Court of Appeals. Missouri.

June 5, 1906.

1. STREET RAILROADS—INTERURBAN RAILWAYS—FAILURE TO FENCE—DOUBLE DAMAGES FOR STOCK KILLED.

An interurban electric railway company, incorporated under Rev. St. 1899, c. 12, art. 3, § 1187, and authorized to operate a street railway for public conveyance of passengers, mail, and express, is a railroad corporation within article 2, § 1105, requiring every railroad corporation incorporated in the state under such article, or any railroad corporation running or operating any railroad in the state, to erect and maintain lawful fences on the sides of its road passing through cultivated fields, and, until such fences are constructed, making it liable for double damages for stock killed on its road.

2. SAME—OCCUPATION OF PUBLIC ROADS.

An interurban electric railroad company, incorporated under Rev. St. 1899, c. 12, art. 3, § 1187, is not relieved of its duty to fence its road, as required by article 2, § 1105, making railroad companies liable for double damages for stock killed on roads, not fenced, running through and adjoining inclosed fields and uninclosed lands, because it was constructed on the right of way of a public road by permission of the county court.

Bland, P. J., dissenting.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by B. W. Riggs against the St. Francois County Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The St. Francois County Electric Railway Company was incorporated under article 3, c. 12, Rev. St. Mo. 1899, and authorized to construct, maintain, and operate a street railway for the public conveyance of passengers, mail, and express in the county of St. Francois, from and through the city of De Lassus to the city of Farmington, and thence to the unincorporated town of Flat River, a place of about 5,000 people in said county. On June 11, 1902, the county court of St. Francois county granted the corporation the right (qualified easement) to construct its railway upon that part of the public road between the south boundary line of the city of Farmington and the city of De Lassus, a distance of about 1½ miles. Afterwards the St. Francois County Electric Railway Company by a general warranty deed conveyed its road, franchises, etc., to the present defendant company. The cars on defendant's railway are propelled by means of electricity with trolley appliance. It carries passengers and express, United States mail, and some freight, as is shown by the evidence, and it is the principal means of transportation from the Iron Mountain Railroad at the city of De Lassus to Farmington. The road is constructed and maintained along and upon the northern part of the public highway from Farmington to De Lassus. The railroad is unfenced at the point in question. The evidence shows that there are posts standing between the railroad track and that portion of the public road occupied for highway purposes, but no fence thereon. About a quarter of a mile south of the city of Farmington the plaintiff's milch cow came upon defendant's tracks and was injured and killed by one of its electric cars. This suit is predicated upon section 1105, Rev. St. 1899, to recover double the value of the cow. The complaint, sufficient in form, alleges in substance that the cow came upon the railroad track at a point where the defendant was required by law to erect and maintain a lawful fence, which it had wholly failed and neglected to do. The trial was had before the circuit judge without a jury. The court found the issues for the plaintiff, assessing his actual damages at $40, and doubling the same under the provisions of the statute. Defendant appeals, and contends, first and principally, that it is not a railroad within the meaning of section 1105, supra, and hence is not required, under the provisions of the said statute, to erect and maintain fences along the sides of its railroad tracks; and, second, that in the event it is held to be a railroad within the purview of that statute, plaintiff cannot recover, inasmuch as it is only required to fence where its road passes "through, along, and adjoining inclosed fields and uninclosed lands." The points will be noticed in their order.

Benj. H. Marbury, for appellant. R. C. Tucker and W. L. Hensley, for respondent.

NORTONI, J. (after stating the facts).

1. The first proposition advanced for reversal of the judgment is that appellant is not a railroad corporation within the contemplation of section 1105, Rev. St. 1899, and as such required to fence its right of way for the better security and protection of animals on the highway and at large, through the country traversed by it. The case of Sams v. Railway Co., 174 Mo. 53, 73 S. W. 686, 61 L. R. A. 475, is cited and relied upon to sustain this contention, and it is argued that the Supreme Court in that case ruled to the effect that the general statutes of the state employing the term "railroad" have application only to commercial railroads and steam railroads, and that street railroads are to be excluded from the provisions of all general statutes employing the term "railroad" only; that to bring a company organized as a street railroad within the purview of the statutes, as in this case, it should by specific terms mention street railroads, etc. The majority of the members of this court do not so understand that adjudication. We are of the opinion that its true import is well digested and stated in the fifth point of the syllabus, in the following language: "The word `railroad,' used in the statute, may or may not apply to a street railway, and, to determine whether or not it does, the connection in which it is used must be looked to." And it appears in the opinion that the court had in mind a special statute, and was dealing with it "as an act of class legislation"—the "fellow servant law of 1897"—and held that inasmuch as that act neither designated street railroads "by name nor by words necessarily indicating the intention to include them, and as such corporations were neither within the letter nor reason of the law, it does not apply to them." It seems quite clear that this much, and no more, was decided in that case. Indeed, it is a rule universally approved that the meaning of the word "railroad," when employed in a legislative enactment, can only be determined by reference to the context of the act and manifest intention of the Legislature. As said by Mr. Wood, in his excellent work on the Law of Railroads (volume 1 [1894] § 1): "Thus it has often been a question whether the term would include a street railway. The answer must depend upon the character of the statute and the purpose for which it was provided." See, also, 1 Elliott on Railways, §§ 4-6. The Supreme Court of Pennsylvania laid down a most reasonable and satisfactory rule on the subject in Gyger v. Railway, 136 Pa. 104, 20 Atl. 399, as follows: "`Railway' and `railroad' are synonymous, and in all ordinary circumstances are to be treated as without distinction, and when either of them is used in a statute, and the context requires that a particular kind of road is intended, that kind will be held to be the subject of the statutory provision; but, if the context contains no such indication and either of the words are used in describing the subject-matter, the statute will be held applicable to every species of road embraced within the general sense of the word used." See, also, Mass. Loan & Trust Co. v. Hamilton, 88 Fed. 588, 32 C. C. A. 46. So it appears, after all, we must look to the context of the statute before the court, and, upon taking into account its object and purpose, determine in each case, upon its peculiar facts, the meaning of the word "railroad" therein employed, when endeavoring to ascertain to what class or character of railroads the Legislature intended to apply the regulation provided, and in no case can an accurate determination and result be had, except by a constant vigil as to the mischief sought to be prevented and the remedy sought to be provided by the enactment.

2. With these principles before us, let the examination of the case before the court be had. The railroad in question is several miles in length, the greater portion of which passes through an agricultural country in St. Francois county. It is chartered for the purpose, and the second franchise granted to it, under section 1187, Rev. St. 1899, is "to operate its road by animal, cable, electric or other motive power as the consent to the use of which said power may be obtained from the public authority of such city, town or county." A portion of the road passes through the city of Farmington, a place of about 5,000 inhabitants, and makes stops at each and every street crossing when necessary for the accommodation of passengers. Aside from this, it is rural or interurban, rather than urban, and by its charter it is authorized to "receive and collect such fares for the transportation of persons, express and mails as may be provided in the said consent of such public authorities of such city, town or county, given as aforesaid." Section 1187, Rev. St. 1899. The motive power selected by it, and presumably authorized by St. Francois county, and the city, under the second franchise, quoted supra, is electrical, rather than animal or cable, and falls under the designation of other motive power contemplated by such franchise. Its cars are propelled by electricity at a more or less rapid rate of speed, as is usual with such roads, and therefore, when in operation, it is a dangerous agency with respect to the rights of those persons who are passengers or employés thereon, as well as with respect to the rights of the citizens and other persons along its route to permit their animals to run at large or to pass to and fro upon the highway. Indeed, it may not be so highly dangerous as a steam railroad...