Silver v. Kansas City, St. Louis & Chicago R.R. Co.

• Decision Date: 31 October 1883
• Citation: 78 Mo. 528
• Parties: SILVER, Appellant, v. THE KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY.
• Court: Missouri Supreme Court

78 Mo. 528

SILVER, Appellant,

v.THE KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

REVERSED.

Ira Hall for appellant.

Macfarlane & Trimble for respondent.

MARTIN, C.

This was an action against a railroad company for the killing of stock, and for damages to growing crops. The petition was filed on the 4th day of January, 1879, and contains four statements or counts. In the first the plaintiff sues for the killing of seventeen sheep, valued at $59.50, on the defendant's track, to which they had strayed by reason of defendant's failure to erect fences as required by law, which now appears in section 809 of the statutes of 1879. This is an action under the statute, and double damages are asked. In the second count the plaintiff sues at common law for negligence in killing the same stock, claiming single damages only. In the third count he sets out an action under the same section of the statute, for damages in the sum of $50, inflicted on his growing crops by stock, which had entered his fields by reason of the defendant's failure to build fences as required in said section. In this count he asks for double damages. In the fourth count he sues at common law for the same destruction of crops, alleging that defendant, by its servants and agents, had unlawfully thrown down the fences inclosing his fields, whereby cattle and other animals had entered upon and destroyed the crops growing therein.

It will be seen from this statement, that the petition contains two statutory actions for omission of the defendant to build fences, one for sheep killed on the track, the other for destruction of growing crops by cattle, and two common law actions for the same injuries, one sounding in negligence, and the other in trespass. As the legal sufficiency of these counts has not been urged before us, I will not consider them with reference to that point.

The answer contains a denial of the allegations of the petition. It also contains a special plea or defense, to the effect, that defendant had the right and power to construct a railroad through the plaintiff's lands; that it had bought and paid plaintiff for the right of way through them; that it had entered into a contract with the Chicago & Alton Railroad Company, a corporation under the laws of Illinois, by the terms of which the latter corporation was to construct the defendant's road from Mexico to Kansas City; that said last mentioned company had sub-let to Messrs. J. S. Wolff & Son the construction of a certain part of the road, including the part running through plaintiff's lands; that said J. S. Wolff & Son went upon said lands and constructed the same, doing no more injury than was necessary to conveniently build said road; that if said J. S. Wolff & Son unlawfully threw down, or left down the fences inclosing plaintiff's lands, such acts were without the authority of the defendant, and were wholly outside their authority as contractors, and for which defendant ought not to be held responsible.

The case was tried by a jury. The evidence submitted by plaintiff tended to prove that defendant's railroad ran through plaintiff's inclosed and cultivated fields, that in May, 1878, the road was constructed through said fields; that during the construction, the fences running across the right of way were torn down; that no fences were built along either side of the road to protect the plaintiff's fields from the incursions of stock; that by reason of the want of such fences, cattle, horses and other stock passed into plaintiff's fields and damaged his crops to the extent of $45; that defendant's road was completed through plaintiff's fields about the 1st day of June, 1878, and freight cars were run over the road; that no fences were built alongside of the road until sometime in the fall of 1878; that no other protection of the plaintiff's fields was provided by defendant, and that two-thirds of the damage complained of was after the completion of the road through plaintiff's land. The plaintiff also gave evidence tending to prove that in the month of August, 1878, seventeen sheep of the value of $47, belonging to him, strayed from inclosed fields, through which the road passed, by reason of a want of a fence along defendant's road, and were killed by the engines and cars on defendant's road; that trains of open and box cars had been running back and forth on the road since the completion of it over plaintiff's land in June, 1878.

Defendant's evidence tended to show that defendant had acquired the right of way over plaintiff's land; that the construction of the road over it was made by J. S. Wolff & Son, as contractors, who hired and controlled the workmen, and that the engines and cars run upon the road prior to plaintiff's alleged damage, were only used in carrying supplies to be used in the construction of the road. Defendant also produced documentary evidence of the contract with the Chicago & Alton Railroad to construct the road, also of the sub-contract of J. S. Wolff & Son to build that portion of it which extended over plaintiff's lands. The contract with the Chicago & Alton Railroad included a perpetual lease of the whole road to it, at a rental equivalent to a designated portion of the profits and earnings of the road.

At the close of the evidence the court refused the instructions asked by plaintiff. They need not be considered for the reason that the law governing the case is sufficiently involved in the instructions given at the instance of defendant. In these instructions, the jury were told that their verdict must be for the defendant on the statutory actions in the first and third counts of the petition, unless the killing of the sheep in the first count and the destruction of the crops in the third count, happened after the completion of the road, and after the company had commenced running trains of cars thereon, for the carriage of freight and passengers for hire. In respect to the common law action for the killing the sheep contained in the second count, the jury were told that they could not find for the plaintiff unless the train of cars was managed or controlled by defendant or its employes, and the defendant was wanting in the exercise of reasonable care in running the train, and in reasonable effort to avoid striking the sheep, and the killing was the result of such want of care or negligence. In respect to the fourth count which related to trespass in throwing down fences, the jury was instructed to find for defendant, if the defendant had placed the construction of its road in charge of the Chicago & Alton Railroad as contractors, and that company had sub-let the construction thereof to J. S. Wolff & Son, and the trespass complained of had been done by said J. S. Wolff & Son or their employes. Upon the giving of these instructions, the plaintiff took a non-suit, which the court refused, on motion of plaintiff, to set aside. The case comes by appeal from this action of the court.

There was no evidence coming from either side to support a verdict on the two common law counts, no evidence of negligence or want of care of running the cars when the sheep were struck; no evidence of a trespass in throwing down fences which let in the cattle; the fences thrown down appearing to have been across the right of way which had passed to defendant. Neither is there any evidence that those fences which defendant had the right to take down were removed in a negligent or imprudent manner, so as to injure the rights of others. The plaintiff could not have been prejudiced by any instructions on these counts, and, therefore, it is unnecessary to review them. They could not have been more prejudicial than one to the effect that the plaintiff on the evidence could not recover on such counts, and an instruction of that import, if asked, ought to have been given.

1. RAILROADS: fences: killing stock: trespass of stock.

The only question necessary for us to consider, involves the correctness of the instructions given for defendant, relating to the statutory actions contained in the first and third counts. As already stated these instructions denied any right of action on these counts before the road was completed, and before the defendant had commenced to run cars upon it for the carriage of freight and passengers for hire. This right of action need not be considered with reference to the effect of the contract of construction which was entered into with the Chicago & Alton Railroad. The effect of that contract was urged only in the instructions on the common law counts. We have considered the proposition contained in the instructions, and, in our judgment, it cannot be maintained either upon principle or authority. The 3rd section of the Railroad Act, after the amendment of 1877, more perfectly than before, was intended to afford protection...