Walther v. Pacific R.R.

• Decision Date: 31 January 1874
• Parties: G. A. WALTHER, Defendant in Error, v. PACIFIC R. R., Plaintiff in Error.
• Court: Missouri Supreme Court

55 Mo. 271

G. A. WALTHER, Defendant in Error,

v.PACIFIC R. R., Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Cole Circuit Court.

Litton & Smith, and Ewing, for Plaintiff in Error.

I. The stock came on the road from an unenclosed and uncultivated, rough, rocky piece of woodland “commons” and not from an enclosed or cultivated field, or an unenclosed prairie,” the only cases provided for by the statute.

Hence defendant was not liable under the statute. (Wagn. Stat., 310, § 43; Cecil vs. Pac. R. R., 47 Mo., 246.)

E. L. King & Bro., for Defendant in Error.

VORIES, Judge, delivered the opinion of the court.

This action was brought before a justice of the peace, under § 43, Art. II, of the statutes of this State, concerning corporations, (Wagn. Stat., 1872, p. 310,) to recover double damages for the killing of a horse by defendant, at a point on defendant's railroad where it passed along and adjoining enclosed and cultivated fields, and where the road was not fenced by a good or sufficient fence as required by law The statement filed before the justice as a cause of action charged, that the defendant was an incorporated company under the laws of this State; that on the 31st day of May, 1871, at Liberty township, in Cole county, at a point on the track of the defendant's railroad where the same passed along and adjoining an enclosed and cultivated field, and not at a private or public crossing of said road, the defendant by its agents and servants, running its locomotive and train of cars, ran the same upon, and over a horse of plaintiff's of the value of $125, and thereby killed said horse; that the defendant had failed and neglected to erect or maintain good or sufficient fences on the sides of its road, at the point where said horse got upon the track of said road and was killed; and that by reason of said killing, and by virtue of the 43rd section of chapter 63, of the General Statutes of Missouri, judgment is prayed for double the value of the horse killed, etc.

The plaintiff recovered a judgment before the justice, from which the defendant appealed to the Cole Circuit Court, where the plaintiff again recovered a judgment for double the value of the horse, as found by the jury. The defendant then sued out his writ of error, and has brought the cause to this court.

At the trial in the Circuit Court, it was admitted by the defendant that it was a corporation as charged. The evidence on the part of the plaintiff tended to prove that the defendant was the owner of, and operated a railroad which runs through Liberty township, in Cole County; that on the 31st day of May, 1871, the agents and servants of the defendant who were in charge of a locomotive and train of cars, being used and run on said railroad in said township, ran the same against, and killed a horse belonging to the plaintiff; that at the point where said horse was killed, the said road passed along or adjoined inclosed and cultivated lands on one side thereof; that on the other side of the road, the land was rough, rugged and uninclosed timbered land; that the road had been fenced, but the fencing was in a dilapidated condition, and wholly insufficient, being in places only one foot high; that the horse of the plaintiff was seen on the track of the road, opposite to the inclosed fields on one side of the road where the cars of defendant struck, ran over, and killed him, and that the horse was worth one hundred and twenty five dollars, and that there was no road crossing at or near where the horse was killed. There was no evidence to show at what particular point or place, the horse came on to the road. There was no evidence offered on the part of the defendant. At the close of the evidence the court at the instance of the plaintiff instructed the jury as follows: It is admitted that the defendant is a corporation, as stated. If therefore the jury believe from the evidence that the plaintiff was, on or about the 31st day of May, 1871, the owner of the horse mentioned in the complaint, and that the horse got on the road of defendant where the same runs through, along or adjoining an inclosed or cultivated field, and that the defendant did not then and there have erected a good and substantial fence on the sides of the railroad, of the height of at least five feet, or have then and there cattle guards at road crossings at such points where the said railroad passed said cultivated field or inclosure, sufficient to prevent horses, mules and cattle from crossing; that said horse was killed at the time aforesaid by the defendant's engine or train of cars, and that the same was done in Liberty township, in Cole county; then the jury will find for the plaintiff, and assess his damages at whatever sum they may believe he has sustained by reason of the killing, not to exceed the amount claimed.” The defendant objected to said instruction, and his objection being overruled, it, at the time, excepted. The court then, at the request of the defendant, gave the jury the following instructions, to-wit:

First. The court instructs the jury, that the Pacific Railroad is not bound by law to erect and maintain fences along the line of its roadway, on the side or sides thereof, when the woods or commons abut against, or adjoin said railway; and if stock stray or get on said road from such woods or common, and go in any direction on said road, and are killed by the locomotives and cars of said railroad, the said railroad is not liable therefor under the statutes, in this form of action.

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