Surface v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 May 1875
• Citation: Surface v. Hannibal & St. Joseph R.R. Co., 60 Mo. 216 (Mo. 1875)
• Court: Missouri Supreme Court
• Parties: SAMUEL SURFACE, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

60 Mo. 216

SAMUEL SURFACE, Respondent,

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Grundy Circuit Court.

Willard P. Hall, Jr., with Carr & Oliver, for Appellant.

M. A. Low, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought before a justice of the peace to recover damages of the defendant, for the wrongful shipment by it of Texas cattle to the county of Caldwell, during a period of the year in which said transportation of said cattle to any county of this State is made unlawful.

This case is in most particulars identical in principle with the cases of Husen vs. The Hannibal and St. Jo. R. R. Company, and the case of Wilson vs. Kansas City, St. Joseph and Council Bluffs R. R. Co., decided at the present term. This case, however, has one additional point in it not raised by the record in the cases before referred to. The difference is this: The evidence in this case tends to prove that the defendant shipped Texas cattle for Messrs. Thompson & Taylor, into the county of Caldwell, during a period of the year when it is made unlawful to ship or drive any such cattle into any county in this State; that said cattle were delivered to said Thompson & Taylor in said county of Caldwell; that some time after said cattle had been brought to Caldwell county by the defendant, the owners of the cattle, (Thompson & Taylor) drove said cattle out of the county of Caldwell into the county of Davis, and in the vicinity of the residence of plaintiff, and that it was there and by this means that the Texas fever was communicated to the plaintiff's cattle, and for which injury this action is brought.

In view of this evidence the defendant asked the court, among other declarations of law prayed for, to declare the law as follows: “If the court believe from the evidence, that the plaintiff's cattle sued for were infected with and died from the disease, commonly called Texas or Spanish fever, in the county of Davis, communicated to said cattle in Davis county, three or four miles from the line of defendant's railroad, by the Texas cattle of Thompson & Taylor, and by them driven into Davis county, and to the place where said disease was so communicated, the defendant was not liable for this action, and the court should so find.”

This declaration of law ought to have been given, but was refused by the court.

The statute, upon which this action is founded, provides that “No...