Shell v. Missouri Pac. Ry. Co.

• Decision Date: 19 March 1907
• Citation: 202 Mo. 339,100 S.W. 617
• Parties: SHELL v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

100 S.W. 617

202 Mo. 339

SHELL v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 19, 1907.

COURTS—APPELLATE COURTS—CONSTITUTIONAL QUESTION—JURISDICTION.

To give the Supreme Court jurisdiction of an appeal on the ground that a constitutional question is involved, it must appear that the question was raised in the trial court and ruled to the disadvantage of appellant, and where, in an action against a railway company for the loss of a mare on a railway right of way, the court did not treat the petition as one for damages, under statutes providing penalties for damages resulting from a railway company's failure to perform duties in respect to its right of way, and on judgment for plaintiff the company made no reference in its motion for a new trial to the constitutionality or unconstitutionality of the statutes, the Supreme Court had no jurisdiction of the question on appeal.

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

Action by P. V. Shell against the Missouri Pacific Railway Company. Defendant appealed from a judgment for plaintiff, and the appeal was certified to the Supreme Court by the Kansas City Court of Appeals. Record ordered transferred to the Kansas City Court of Appeals.

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

GANTT, J.

This appeal has been certified to this court by the Kansas City Court of Appeals. The action was commenced in the circuit court of Barton county by the plaintiff for damages resulting from the loss of a bay mare, which had strayed upon the defendant's right of way on account of a defective cattle guard, and was injured and died under the following circumstances: That while said mare was on said right of way, which was fenced, the defendant's servants, while operating a hand car, and by exertions and noise intentionally made by them for the purpose, frightened said mare and caused her to run against the right of way fence, by reason of which she was injured and died from her injuries. The animal was valued at $125. The petition prayed for double damages, together with a reasonable attorney's fee. The answer of the defendant contains, first, a general denial, and then proceeds as follows: "Defendant for further defense states that sections 1105, 1106, 1107, 1108, and 1109, Rev. St. Mo. 1899 [Ann. St. 1906, pp. 945-960, under which this suit is attempted to be brought, are in conflict with the Constitution of Missouri, as well as the Constitution of the United States, in that: First, said sections are in conflict with section 10, art. 2, of the Constitution of the state of Missouri of 1875, in this, that: `Right and justice should be administered without sale, denial or delay.' Second, said sections are likewise in conflict with section 20 of article 2 of the Constitution of Missouri of 1875, in this, that they authorize the taking of private property for private use, without the consent of the owner. Third, said sections are in conflict with section 21 of article 2 of said Constitution, in that they authorize the taking of private property for public use without compensation. Fourth, said sections are in conflict with article 5 of the amendments to the Constitution of the United States, in this, that they deprive said defendant of its property without due process of law. Fifth, said sections are in conflict with article 5 of the amendments to the Constitution of the United States, in this, that they authorize the taking of private property for public use without compensation. Sixth, that said sections are in conflict with article 8 of the amendments of the Constitution of the United States, in this, that they impose a cruel and unusual punishment upon the defendant herein. Seventh, said sections, in allowing double damages and attorney's fees, are unjust, oppressive, and contrary to public policy, constitute class legislation, and discriminate against railway companies." To this answer there was a reply consisting of a denial of the new matter. The cause was tried at the January term, 1903, and resulted in a verdict in favor of the plaintiff for $125, and judgment accordingly. Motions for new trial and in arrest of judgment were filed in due time and overruled, and exceptions saved.

The following facts, we are advised by the appellant, the defendant in this case, stand uncontradicted in the record: Plaintiff was the owner of the mare in controversy, and she was worth $125 at the time of the injury. The defendant at the time of said injury, and for several years prior thereto was operating a railroad through Barton county, Mo. Said road passed through the northwest corner of section 24 of Le Roy township, in said county, and through section 23 of said township in a southwesterly direction. During the period aforesaid, there was a public road running along the east side of said section 23, and defendant's road crossed this public road, and, at the place where it crossed it, had for some time previous attempted to maintain a cattle guard hereinafter mentioned. For some time prior to April, 1902, defendant had its right of way through said section 23 fenced with a good barbed wire fence, with sufficient posts, etc., so that it became a lawful fence. Some distance south of said cattle guard, the defendant maintained a culvert over which its road passed, which was several feet deep. It likewise maintained fences on each side of said...