Stout v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 07 February 1910
• Citation: 125 S.W. 230,142 Mo. App. 1
• Parties: STOUT v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

125 S.W. 230

142 Mo. App. 1

STOUT v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. RAILROADS (§ 444) — KILLING STOCK — DOUBLE DAMAGES — STOCK KILLED WITHIN INCORPORATED TOWN.

A railroad company is not liable for double damages for killing stock within an incorporated town or city, caused by failure to fence the track, under Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), requiring a railroad company to fence certain parts of its track, and making it liable for double damages until it does so; the section not requiring fences within such towns and cities.

2. RAILROADS (§ 441) — KILLING STOCK — SINGLE DAMAGES.

If a railroad company kills an animal on its track at a place which might have been fenced without inconvenience to the operation of the road or the public access thereto, single damages may be recovered under Rev. St. 1899, § 2867 (Ann. St. 1906, p. 1649), giving damages for the killing of animals by a railroad locomotive, etc., without proof of the company's negligence, except where the accident occurs on a portion of the road inclosed by a lawful fence, or in the crossing of a public highway.

3. RAILROADS (§ 412) — KILLING STOCK — ANIMAL KILLED WHILE ESCAPING OVER DEFECTIVE CATTLE GUARD.

If an animal enters upon a railroad right of way which forms a part of the public highway and is killed there, no liability of the railroad attaches, but if it enters the right of way at such a point and passes therefrom over a defective cattle guard and onto the right of way at a point where the company is required to fence, or where it might fence, and upon the approaching of a train tries to escape and is

caught on the right of way, either at a point where the company is required to fence, or on the highway, the company is liable.

4. MUNICIPAL CORPORATIONS (§ 7) — VALIDITY OF INCORPORATION — INCLUDING AGRICULTURAL LAND.

The incorporation of a village is not invalidated because a large tract of land, used for agricultural purposes, without blocks or streets, was improperly included.

5. MUNICIPAL CORPORATIONS (§ 18) — VALIDITY OF INCORPORATION — COLLATERAL ATTACK.

The validity of the incorporation of a village cannot be collaterally attacked.

6. RAILROADS (§ 440) — INJURIES TO LIVE STOCK — PLEADING — DOUBLE DAMAGES — RECOVERY OF SINGLE DAMAGES.

In an action against a railroad company for double damages for killing stock, there can be no recovery for single damages.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by George C. Stout against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed in part.

James F. Green, for appellant. Abington & Phillips, for respondent.

GRAY, J.

In the April term, 1909, of the circuit court of Butler county, three suits were pending in which the respondent was plaintiff, and the appellant, defendant. On motion of the defendant, the suits were consolidated, and the defendant filed a general answer, consisting of a general denial. The case was tried on the 7th day of May, 1909, before a jury, resulting in a verdict in favor of the plaintiff on all the counts in his different petitions.

One of the suits is in three counts, to recover damages for hogs killed by the defendant. In this suit, the plaintiff alleged in the first count that at a point on defendant's road, in Neeley township, Butler county, one of his hogs came upon the track of the defendant where the same passes through inclosed fields, and where there was no public crossing or highway, and at a point where, under the laws of Missouri, the defendant is required to maintain fences, and that said hog came upon said track at said point by reason of the fact that the defendant had failed to maintain the fence required by law, and on account thereof was run over and killed by a train operated by the defendant, and that said hog was of the value of $7.80, and prayed judgment for double damages. The second count is similar to the first, and alleges the value of the hog to be $9, and prays for double damages and costs. The third count alleges the value of the hog to be $7.80, and is exactly like the first count, except that it alleges the hog was killed on the 9th day of December, 1908, while the first count fixed the date as October 11, 1908. The testimony shows that the hogs belonged to the plaintiff, and that they were killed by the defendant's trains; that they were killed at a point where, under the law, the defendant is required to maintain a fence, and that the fences were badly out of repair. The jury found a verdict for the plaintiff on each count, in the sum of $7. The court rendered judgment for double damages, to wit, $14, on each count. The appellant has not called our attention to any errors of the trial court in this part of the consolidated case, and in fact none exist.

Another one of the suits is for damages growing out of the killing of a bull by the defendant. The testimony shows that the railroad of the defendant passes through the town of Harviell, and at the southern limits of this town is a public highway running east and west, and that this highway is crossed by the railroad at this point. The ownership of the animal and the fact that he was killed by one of the trains of the defendant is not questioned. The action was not brought for double damages, but single damages, and the petition alleges that the place where the animal entered upon the highway, is a place where said right of way might have been inclosed by cattle guards and lawful fences, but that the defendant suffered the fence at said point to remain down and out of repair, at the time and place, and where said animal got upon its railroad and was killed. The station is north of the public highway, and between the station and the public highway, for a part of the way at least, and next to the highway, the railroad company had attempted to fence its right of way. Wing fences had been erected leading from the track to the right of way, and a cattle guard had been put in at the point where the railroad intersects the north side of the highway. There were no streets, switches, or anything to prevent the fencing of the right of way north of the highway, and the company had erected fences and put in cattle guards, and thereby showing that a fence could be maintained at the place in question.

There were three witnesses testified concerning the killing of the animal. Albert Fray, a farmer, examined on the part of the plaintiff, testified that he saw the train hit the animal and knock him off the track; that he was standing waiting for the train to pass, and that the bull, at the time he was struck, was just at the edge of the north cattle guard, and that at the time the animal was struck he had got over the cattle guard from the north and was on the public highway. The witness also testified that the bull had been inside the highway, and he was not really certain whether he had passed entirely over the cattle guard into the highway before he was struck. From all the testimony of this witness, it is left in doubt whether the animal had crossed from the right of way, north of the highway, out onto the highway before he was struck. George Pigg, another witness for the plaintiff, said he was plowing in the field near the railroad, and was standing in the shade at the time the animal was...