Robinson v. Chicago & Alton R.R.

• Decision Date: 31 October 1874
• Citation: 57 Mo. 494
• Court: Missouri Supreme Court
• Parties: GEORGE W. ROBINSON, Plaintiff in Error, v. CHICAGO & ALTON R. R., Defendant in Error.

57 Mo. 494

GEORGE W. ROBINSON, Plaintiff in Error,

v.CHICAGO & ALTON R. R., Defendant in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Louisiana Court of Common Pleas.

W. H. Morrow, for Plaintiff in Error.

T. J. C. Fagg, for Defendant in Error.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his action for the value of three hogs killed by defendant's locomotive and cars; and the only question presented by the record is, whether the killing happened at a place where the defendant was required to fence its track. The case was tried in the court below upon an agreed statement of facts, the substance of which was, that the road where the hogs were killed was fenced on both sides, but that the fencing was not sufficiently strong and close to prevent the hogs from passing through, on to the line of the railroad; that the fencing was not such a fence as the law requires to be made on the sides of railroads, where the statute devolves that burden upon them, and that at the point on the line of the road where the hogs were killed, the road passes along or adjoining inclosed or cultivated fields on one side, and that the fencing on the other side of the road is on a line with the line of the Louisiana and Middleton gravel road, and is contiguous with the line of the gravel road, on the side of the gravel road next to the railroad; that there is no intervening space of ground between the right of way of the railroad and the right of way of the gravel road, and that plaintiff's premises adjoin the opposite side of the gravel road, and that there are inclosed and cultivated fields on that side.

On this statement of facts, the court found for the defendant, and held as a conclusion of law, that the railway company was not bound to erect and maintain fences along the line of its road.

The statute (Wagn. Stat., 310, 11, § 43) declares, that “every railroad corporation formed or to be formed in this State, and every corporation formed or to be formed under this chapter, shall erect and maintain good and substantial fences on the sides of the road where the same passes through along or adjoining inclosed or cultivated fields, or uninclosed prairie lands.” And the 5th section of the damage act, authorizes a recovery for all animals killed by the cars of any company, without proof of any negligence, unskillfulness or misconduct on the part of the servants of the company, provided the road is not fenced. (Wagn. Stat., 520.)

The argument...