Riggs v. St. Francois County Railway Company
| Decision Date | 05 June 1906 |
| Parties | RIGGS, Respondent, v. ST. FRANCOIS COUNTY RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Francois Circuit Court.--Hon. Chas. A. Killian Judge.
AFFIRMED.
STATEMENT.--The St. Francois County Electric Railway Company was incorporated under article 3, chapter 12, R. S. 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 town of DeLassus to the city of Farmington, and thence to the unincorporated town of Flat River, a place of about five thousand 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 to the city of DeLassus, a distance of about one and one-half 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 DeLassus to Farmington. The road is constructed and maintained along upon the northern part of the public highway from Farmington to DeLassus. 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, R. S. 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 enclosed fields and uninclosed lands."
The points will be noticed in their order.
Judgment affirmed.
Smith & Marbury for appellant.
(1) The Double Damage statute (Revised Statutes of 1899, section 1105), relating to the liability of railroad corporations for a failure to erect and maintain lawful fences on the sides of its road, does not apply to street railway companies. Sams v. Railway, 174 Mo. 53; Johnson v. Railway, 104 Mo.App. 588; Stocks v. Transit Co., 106 Mo.App. 129; Godfrey v. Transit Co., 107 Mo.App. 193; Houts v. Transit Co., 108 Mo.App. 686; Railway v. Lohe, 67 L. R. A. 637; 19 Am. and Eng. Ency. Law, p. 941. (2) The privilege which appellant company acquired by the assent of the county court, that its road might be constructed and tracks laid down and operated in the public highways, can never be more than a qualified right or easement to use said highway in common with every citizen. The law does not grant the street railroad the right of eminent domain, nor does the law impose upon the street railroad the duty to fence its road constructed and operated in a public highway. R. S. 1899, sec. 1187; Sams v. Railway, 174 Mo. 80; Transfer Co. v. Bridge Co., 111 Mo. 666. (3) The Double Damage statute, being in derogation of the common law and penal in its character, must be strictly construed; and so as not to enlarge the liability it imposes, nor allow a recovery, unless the party seeking it, brings his case strictly within the terms or conditions authorizing it. Dudley v. Tel. Co., 54 Mo.App. 391; State ex rel. v. Railway, 19 Mo.App. 104. (4) Conceding that appellant's railroad was unfenced at the point where the cow got upon its track and was killed; yet it devolves upon the respondent to show, that at this particular point, the railroad ran "through, along and adjoining inclosed or cultivated fields and uninclosed lands," and failing to do this, he cannot recover. R. S. 1899, section 1105; Growney v. Railway, 102 Mo.App. 442; Carpenter v. Railway, 25 Mo.App. 110; Smith v. Railway, 25 Mo.App. 113; Berry v. Railway, 65 Mo. 172; Harrington v. Railway, 71 Mo. 384; Johnson v. Railway, 80 Mo. 620; Peddicord v. Railway, 85 Mo. 160.
R. C. Tucker and W. L. Hensley for respondent.
(1) Railroad corporations are required to errect, keep and maintain lawful fences on the sides of its road at all points except at public crossings and within the limits of cities and towns and a sufficient amount of space about its depots for the transaction of business with the public; and the question whether the appellant was required to fence at the point where plaintiff's cow came upon the track is one for the triers of the case. Vandermarker v. Railway, 51 Mo.App. 166; Taylor v. Railway, 28 Mo.App. 556; Ellis v. Railway, 89 Mo.App. 241; Riley v. Railway, 89 Mo.App. 375; Brandenburg v. Railway, 44 Mo.App. 224; Prather v. Railway, 84 Mo.App. 86. (2) The contention of appellant that it is not liable under section 1105, R. S. 1899, for the reason that its line of road runs parallel with and adjoins the county road is without merit. It has been held by the Supreme Court and the courts of appeal of this State that where the railroad runs parallel with a public highway where plaintiff's animal strayed upon the railroad track, it is not excused from fencing, even though its said right of way laps upon the highway. Emmerson v. Railway Co., 35 Mo.App. 621; Rolinson v. Railway Co., 57 Mo. 694; Morris v. Railway Co., 79 Mo. 367; Razzelle v. Railway, 79 Mo. 349.
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, R. S. 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, 174 Mo. 53, 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" has 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, vol. 1, (1894), sec. 1: See also 1 Elliott on Railways, secs. 3, 4, 6. The Supreme Court of Pennsylvania laid down a most reasonable and satisfactory rule on the subject in Gyger v. Railway, 136 Pa. 96, 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 F. 588.
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...
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