Stonebraker v. Chicago & Alton Railway Company
| Decision Date | 21 February 1905 |
| Citation | 85 S.W. 631,110 Mo.App. 497 |
| Parties | STONEBRAKER, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Louisiana Court of Common Pleas.--Hon. David H. Eby Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Scarritt Griffith & Jones for appellant.
(1) The Illinois Act which is the basis of this suit is a penal statute, a police regulation. Railroad v Warrington, 92 Ill. 157; Railroad v. Jacksonville, 67 Ill. 37; Railroad v. Russell, 115 Ill. 52. (2) It is held by the courts both of Missouri and of Illinois that penal statutes are local and not enforceable outside of the jurisdiction enacting them. Kimball v. Davis, 52 Mo.App. 212; Tel. Co. v. Bank, 74 Ill. 217; Sherman v. Gassett, 4 Gilm. (Ill.) 521; Barnes v. Whittaker, 22 Ill. 606; 16 Ency. Pleading and Practice, 248. (3) The demurrer to the evidence should have been sustained by reason of the failure of plaintiff to prove that his horse was killed by actual collision with one of defendant's trains. Stump v. Railway, 84 Ill.App. 28; Schertz v. Railway, 117 Ill. 577; Hesse v. Railway, 36 Mo.App. 163. The court erred in giving plaintiff's instruction "A." By plaintiff's instruction "A." the jury were told that if they believed that the statute of Illinois in question was then in force, "and that defendant failed to comply with the provisions of said statute, and that by reason of such failure of defendant plaintiff's horse got upon defendant's railroad and was thereby killed, your verdict must be for the plaintiff." This instruction is erroneous, in that it leaves the construction of this statute to the jury, whereas its interpretation is a question of law for the court. (4) Instructions should be based upon the pleadings. Plaintiff cannot allege negligence in one respect and recover for negligence in a different respect. Gessley v. Railway, 26 Mo.App. 156; Kenny v. Railway, 70 Mo. 252; Hassett v. Rust, 64 Mo. 325; Abbott v. Railroad, 83 Mo. 271. This instruction is further erroneous in that it permits plaintiff to recover if his horse was killed in any manner upon defendant's right of way, while, in law, his right to recover depended upon the horse being killed by an actual collision with a railroad train.
Matson & May for respondent.
(1) Under the act of April 20, 1891, a plaintiff may maintain in the courts of this State suits upon any cause of action that may have been accrued to him under the law of any other State. Riley v. Receivers, 72 Mo.App. 280. In the above case the court further says: "Whatever now may have heretofore been the rule of comity between the States as to the enforcement of causes of action accruing in foreign jurisdictions the statutes above quoted settle the rights of the parties here, and unquestionably establish the right of plaintiff to maintain this action." Jones v. Railway, 178 Mo. 528, 77 S.W. 890; Hudson v. Railway, 53 Mo. 525. The statute authorizing judgment against a railroad company for killing stock is compensatory in giving the owner of animals injured the right to recover the damages sustained, and in this regard is to be construed like any other statute. Parish v. Railroad, 63 Mo. 284. (2) The statute for recovery of single damages against railroad companies for the killing of stock does not provide for an exclusive remedy but is cumulative and does not displace the common law in the situation to which it applies, and under a general allegation of negligence, the plaintiff may succeed either by proving negligence at common law or by proving the constructive statutory negligence. The plaintiff can, under an allegation of negligence at common law make out a case by giving either evidence which would be evidence of negligence at common law, or evidence which is made presumptive evidence of negligence under the statute. Hill v. Railway, 49 Mo.App. 526, 66 Mo.App. 184, 121 Mo. 477; Hurley v. Railway, 57 Mo.App. 675. (3) If an animal comes upon the track of a railroad and is killed, when such track might be lawfully fenced, the railway company is liable regardless of the question of negligence. Vanderworker v. Railway, 51 Mo.App. 166; Biglaw v. Railway, 48 Mo. 510; Smith v. Railway, 91 Mo. 58, 3 S.W. 836.
This is an action for the value of a mare alleged to have been killed by an engine of the defendant company. The cause of action originated in the State of Illinois and is founded on a statute of that State giving single damages to the owners of stock killed by an engine or a train of a railway company at any point along the line where the right of way is not fenced as required by law. It is said there was no evidence to show that the mare was struck by a train, which must have been shown to bring the case within the Illinois statute. The mare was found lying on the right of way near the track, with her head badly bruised and one eye knocked out of its socket. This and other facts in proof were sufficient in our judgment, to support a finding by the jury that the mare was killed by an engine or train.
It was said that the statute was a penal one and not enforceable outside the State of its enactment. Decisions of the Supreme Court of Illinois are cited on the proposition. The statute in question allows single damages by way of compensation. The decisions cited refer to a double damage statute. [Railway v. Warrington, 92 Ill. 157; Railway Co. v. Russell, 115 Ill. 52, 3 N.E. 561.]
The petition avers that the place where the animal went on the railway right of way and where it was killed, was not a point where the railroad was enclosed by a lawful fence. We will quote the language used:
"That at the place at which plaintiff's said animal went upon the said railroad; to-wit, near said Quincy Junction, in said Pike county, Illinois, and where it was injured and killed by the engine and cars on said railroad, was not at a point where the railroad was enclosed by a lawful fence, not at the crossing of any public road or highway, nor within an incorporated city, town or village; that said animal was injured and killed at a place where the defendant might lawfully have erected and maintained fences on the sides of said railroad, and constructed cattleguards sufficient to prevent animals from getting on the railroad, but defendant had failed and neglected to construct and maintain fences, gates and cattleguards at said place, as required by said statute of the State of Illinois."
Testimony was elicited at the trial which tended to show the mare went on the track through an open gate at a place where the right of way was lawfully fenced, instead of where no fence had been constructed and maintained. This evidence was objected to because the petition did not allege the gate was left open. On this evidence the jury was instructed, in substance that the statute required the defendant to maintain fences with gates therein at farm crossings and that the gates were part of the fences; that it was part of the statutory duty of the railroad company to maintain the gates in repair and keep them closed so as to protect stock from getting on the track through them as well as at other places, and if the jury believed the horse got on the track through the gate and the gate was left standing open so long before the accident that the defendant knew it was open, or by the exercise of ordinary care could have discovered it was in time to close it before the mare went through, and that by reason of the defendant's neglect to close it, the mare got on the track and was struck and killed by an engine, the defendant was liable. That instruction is assailed as erroneous because it allowed a...
To continue reading
Request your trial