State ex rel. Simpson v. Quincy, O. & K. C. R. Co.

• Decision Date: 01 October 1910
• Citation: 131 S.W. 161,150 Mo. App. 566
• Parties: STATE ex rel. SIMPSON v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Court of Appeals

131 S.W. 161

150 Mo. App. 566

STATE ex rel. SIMPSON v. QUINCY, O. & K. C. R. CO.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

1. STATUTES (§ 241) — PENALTIES (§ 33) — CONSTRUCTION — PENAL STATUTES.

A penal statute is to be strictly construed, and proof to make a case within its provisions must be specific.

2. HIGHWAYS (§ 17) — EVIDENCE.

In an action under Rev. St. 1899, § 1102 (Ann. St. 1906, p. 938), providing a penalty for failure to give certain signals when a train crosses a public road, the public road involved need not be proved by the records of the county court showing establishment by legal procedure, as the statute applies also to roads established by user or by prescription.

3. RAILROADS (§ 254) — STATUTES — EVIDENCE.

Section 1102, Rev. St. 1899 (Ann. St. 1906, p. 938), provides that a bell shall be rung or a whistle sounded when a railroad train approaches and passes the crossing of "any traveled public road" under a penalty for each neglect. Held, in an action for the penalty, that failure to prove that the road was a "traveled" public road was fatal to a recovery.

Appeal from Circuit Court, Lewis County; Charles D. Stewart, Judge.

Suit for a statutory penalty by State, on the relation of N. W. Simpson, against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Clay & Johnson, R. J. McNally. and J. G. Trimble, for appellant. N. W. Simpson, for respondent.

NORTONI, J.

This is a suit in the nature of a qui tam action for a statutory penalty. Relator is prosecuting attorney. He recovered, and defendant appeals.

It appears Ashford owns a farm in Lewis county through which defendant railroad passes. There is a public road adjacent to this farm on which defendant maintains a public crossing, and the evidence is that defendant's trains frequently passed over the same without either sounding the whistle or ringing the bell as the statute requires. Because of a railroad cut there, which obstructs the view, it is important the signals required should be given upon approaching the crossing. Ashford testified that, to the end of enforcing the obligation of the statute, he made some observations on the day named in the information, and defendant's train approached and passed the crossing without either sounding the whistle or ringing the bell. The statute (section 1102, Rev. St. 1899 [section 1102, Ann. St. 1906]) requires the bell on locomotives shall be rung at a distance of at least 80 rods from the place where the railroad shall cross any traveled public road and be kept ringing until it shall have crossed such road, or a steam whistle attached to such locomotive shall be sounded at least 80 rods from the place where the railroad crosses any such road, except in cities, and be sounded at intervals until it shall have crossed such road, under a penalty of $20 for each neglect, etc. A further provision therein is to the effect that such penalty shall be recovered in a suit instituted by the prosecuting attorney within 10 days after it was incurred, one half thereof to go to the informer and the other half to the county. Ashford immediately informed the prosecuting attorney, and the suit was instituted by that officer in accordance with the statute and within the 10 days prescribed. It will be observed that the statute enjoins the obligation to ring the bell or sound the whistle on approaching the crossing of "any traveled public road." Testimony for relator is to the effect that the road involved here and the one on which defendant had established the Crossing was a public road, but it is not expressly stated in the evidence to have been a "traveled public road."

The only...