Webster v. United States Railroad Administration

Citation234 S.W. 790
Decision Date19 November 1921
Docket NumberNo. 22170.,22170.
PartiesWEBSTER v. UNITED STATES RAILROAD ADMINISTRATION et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by B. A. Webster against the United States Railroad Administration and others. Judgment for plaintiff, and defendants appeal. Transferred to Court of Appeals.

Daniel Upthegrove and John R. Turney, both of St. Louis, and Wammack & Welborn, of Bloomfield, for appellants.

Valentine Perkins, of Lilbourn, for respondent.

REEVES, C.

This is an action for damages for the loss of a horse occasioned by its falling through a trestle of the defendant railway company. The suit was originally brought before a justice of the peace upon a petition alleging the ownership of a horse valued at $200; that it went upon the right of way of defendant railroad at a place where, under the law, the railroad should have been fenced and fell through a trestle, injuring it so that it had to be killed. Appellants filed no formal pleadings.

The negligence complained of was the failure to fence the right of way as required by statute.

Judgment by default in the justice court; an appeal to the circuit court, where, waiving a jury, the cause was submitted to the court upon the following agreed statement of facts:

"Parties in the above cause agreed that the facts in said cause are as follows: That plaintiff was the owner of the brown horse mentioned in the petition herein, of the value of $200; that on August 4, 1918, defendants operated a line of railroad through Lewis township, New Madrid county, Mo., and that on said day, at a place in said township where, under section 3145, R. S. Missouri 1909, said railroad was required to be fenced and was not fenced, the said horse went upon said railroad track and fell through a trestle in defendants' railroad, and so crippled and injured itself that it was valueless and had to be killed; that said trestle was very long, several feet above the ground, as alleged in the petition, and that the right of way at said place has never at any time been fenced; that said animal was not frightened or struck by any locomotive or train."

At the beginning of the trial defendants objected to the introduction of any testimony upon the grounds: First, that the petition did not state a cause of action; and, second, that if sections 3145 and 3146, R. S. 1909, now sections 9948 and 9949, R. S. 1919, should be construed to hold defendants liable upon the facts as embodied in the agreed statement of facts, then such sections should be declared void as being in violation of the Constitution of the state of Missouri, prohibiting class legislation. This objection was overruled, and upon the submission of the case judgment was entered for respondent for $200.

Before passing upon the first question involved in the above objection made by appellants, it is necessary to determine whether or not a constitutional question is in the case, as otherwise this court would not have jurisdiction of the subject-matter. Section 12, art. 6, Constitution of Missouri, and section 5, Amendments of 1884 to the Constitution. Again we must determine whether or not this same question has been passed upon by this court. If so, we would be without jurisdiction. Dickey v. Holmes, 208 Mo. 664, 106 S. W. 511; State v. Campbell, 214 Mo. 362, 113 S. W. 1081; State v. Swift & Co., 270 Mo. 694,...

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