State ex rel. Simpson v. Quincy, Omaha & Kansas City Railroad Co.

• Decision Date: 01 October 1910
• Citation: 131 S.W. 161,150 Mo.App. 566
• Parties: STATE ex rel. N.W. SIMPSON, Etc., Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

131 S.W. 161

150 Mo.App. 566

STATE ex rel. N.W. SIMPSON, Etc., Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

October 1, 1910

Appeal from Lewis Circuit Court.--Hon. Charles D. Stewart, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Clay & Johnson, R. J. McNally and J. G. Trimble for appellant.

Evidence of a "road crossing east of the depot," as spoken of by one witness, and of "a crossing near the east end of the depot platform," as stated by the other witness might be admitted to be true, and yet such crossing might not be "a traveled public road," as it is designated in the statute. Hodges v. Railroad, 71 Mo. 50; Bauer v. Railroad, 69 Mo. 219; State v Railroad, 19 Mo.App. 104; Parish v. Railroad, 63 Mo 284.

N.W Simpson for respondent.

OPINION

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 (sec. 1102, Revised Statutes 1899, sec. 1102, An. St. 1906), requires the bell on locomotives shall be rung at a distance of at least eighty 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 eighty 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 twenty dollars 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 ten 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 ten 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 point made on appeal for reversal of the judgment is that there is no evidence in the case showing the road to be such as contemplated by the statute. It may be conceded that the statute is penal and must therefore be strictly construed. It is essential, too, that the proof shall be sufficiently specific to make a case within its provisions. [State to use, etc., v. C. R. I. & P. R. Co., 19 Mo.App. 104; Bauer v. K. P. R. Co., 69 Mo. 219.] But we do not understand that it was incumbent on relator to produce the records of the county court and show the public road involved was established by legal proceedings to that end. Such statutes apply as well to roads established by user or prescription as they do to those established by legal proceedings. Such has been decided in many cases. See Lee v. St. L. & S. F. R. Co., 146 Mo.App. 696, 129 S.W 773; Sikes v. St. Louis & S. F. R. Co., 127 Mo.App. 326, 105 S.W. 700, 105 S.W. 700; Giltz v. St. L. S.W. R. Co., 65 Mo.App. 445. That a highway may be established and become a public road...