Shell v. Missouri Pac. Ry. Co.

• Decision Date: 29 June 1908
• Citation: 132 Mo. App. 528,112 S.W. 39
• Parties: SHELL v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

112 S.W. 39

132 Mo. App. 528

SHELL v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

Rehearing Denied July 15, 1908.

1. RAILROADS—KILLING STOCK—NATURE AND FORM OF ACTION—STATUTORY PROVISIONS.

Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), provides that railroad companies shall be liable in double damages for the killing of stock resulting from failure to construct cattle guards and fences, where they are required sufficient to prevent horses and other animals from getting on the railroad. Section 1106 (Ann. St. 1906, p. 959) provides that whenever live stock shall go upon any railroad or railroad right of way, and the railroad is not inclosed at the place of the injury, by a good fence on both sides, as required by law, and such stock, being frightened by any passing locomotive or train, is injured or killed by running against the fence, the railroad company shall be liable for the damage thereby sustained. Section 1107 (Ann. St. 1906, p. 960) provides for the allowance of an attorney's fee when the action is founded on section 1106. In an action against a railroad company for the killing of a mare, the petition alleged that the mare was frightened by the noise of a hand car and the acts of the sectionmen in attempting to drive the mare from the track, and ran into a wire fence inclosing the right of way, and was so injured that it died, and that the death of such animal was occasioned by defendant's neglect to construct and maintain, according to its duty, a cattle guard sufficient to prevent animals from getting on the track, and prayed for judgment for double damages, "under the statute in such cases made and provided," and interest and an attorney's fee. Held, that the facts alleged in the petition did not set forth a cause of action under either section 1105 or section 1106, and, though the petition asked for double damages and attorney's fees, it must be regarded as setting up a cause of action at common law.

2. SAME.

The fact that the right of action against a railroad company for killing stock arose from the violation of Rev. St. 1899, §§ 1105, 1106 (Ann. St. 1906, pp. 945, 959), requiring the construction and maintenance of fences and cattle guards, does not necessarily render an action for the injury a statutory one; but such an injury from failure to perform a statutory duty, will support an action at common law.

3. COURTS—COURTS OF APPELLATE JURISDICTION — MISSOURI — CONSTITUTIONAL QUESTION.

Where an action against a railroad company for killing stock was taken by appeal to the Court of Appeals, and was by such court transferred to the Supreme Court on the ground that the constitutionality of Rev. St. 1899, §§ 1105, 1106 (Ann. St. 1906, pp. 945, 959), on which the action was based, was involved, the fact that the Supreme Court sent the case back to the Court of Appeals, on the ground that the constitutional question was not in the case, since it had not been presented to the trial court, did not prevent the Court of Appeals from holding that the action was a common-law action, based on the violation of such sections of the statute.

4. RAILROADS—KILLING STOCK — VIOLATION OF STATUTE—LIABILITY AT COMMON LAW.

Where a railroad company fails to maintain a proper cattle guard, and an animal passes over the same into a pocket or trap formed by the right of way fences and a culvert with the wing fences connected therewith, and is there frightened by the approach of a hand car and the efforts of sectionmen to drive the animal from the track, and runs into a wire fence and is injured, the company is liable at common law, irrespective of Rev. St. 1899, §§ 1105, 1106 (Ann. St. 1906, pp. 945, 959), relating to the construction of fences and cattle guards for railroad tracks.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by P. V. Shell against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See 100 S. W. 617.

Jno. A. Davis and R. T. Railey, for appellant. Cole, Burnett & Moore, for respondent.

ELLISON, J.

This is an action for damages arising from the death of plaintiff's mare, and he obtained judgment in the circuit court for $125. Defendant appealed to this court; but, on account of it having set up in its answer that sections 1105 and 1106, Rev. St. 1899 (Ann. St. 1906, pp. 945, 959), were unconstitutional, we transferred the case to the Supreme Court. The case was argued in that court; but it came to the conclusion that the constitutionality of those sections was not involved, since defendant had not presented such question to the trial court, and the latter court had not made any ruling thereon (202 Mo. 339, 100 S. W. 617), and returned the case to this court for determination.

The facts necessary to state are these: Defendant's road at and near the place where the animal was killed was fenced on each side with a lawful fence of barbed wire. That where the road crossed a highway there was a cattle guard so negligently and defectively constructed and so negligently maintained that animals could pass over it onto defendant's right of way so inclosed by the barbed-wire fence. That further on there was a culvert over which the defendant's track was laid, and where fences, or "wings," connected with said parallel fences inclosing the right of way; the result of this condition being that an animal getting onto the right of way over the cattle guard could not proceed further up the track or right of way between the fences than the culvert. Plaintiff's mare escaped from his inclosure and was at large. She came upon the highway and passed through the defective cattle guard onto the right of way, and while there defendant's sectionmen propelling a hand car came up from below the cattle guard, thus being behind the mare. They saw her and stopped the car, when two of them got off and endeavored to get ahead of her so as to drive her back through the cattle guard off of the right of way. We are satisfied there was evidence tending to show that she was frightened by the noise made by the hand car before it stopped, and ran into the barbed-wire fence, where she was so badly cut that she soon died. The petition charges: That the sectionmen were operating the hand car, and by reason of the appearance or noise ordinarily made by running the car and the exertions and noise intentionally made by the men for the purpose of scaring the mare so frightened her as to cause her, in her effort to escape, to throw herself upon the wire fence near the culvert, whereby she was killed; "that her death was so occasioned by defendant's neglect to construct and maintain, according to its duty in the premises, at the point where the pretended cattle guard above mentioned was situated, cattle guard sufficient to prevent horses, cattle, mules, and all other animals from getting on the railroad, and by the act and conduct of defendant's servants as aforesaid." The petition then alleged the value of the mare to be $125, and proceeded to state: "That under the statute in such cases made and provided plaintiff is entitled to damages in a sum double the value of the mare, to wit, $250. That plaintiff, after his said mare was killed, and on and before the ____ day of April, 1902, demanded of defendant payment of the value of said mare. That defendant has failed, neglected, and refused to pay. Wherefore plaintiff asks judgment for the sum of $250, double the value of said mare killed, and that he recover of the said defendant interest thereon at the rate of 6 per cent. per annum from the date of filing this petition, and that an attorney's fee be fixed by the court and taxed as costs herein against the defendant, at such sum as may be a reasonable compensation for all legal services herein rendered for the plaintiff, and for the costs generally in this action by plaintiff expended."

The defendant did not offer...