Wier v. St. Louis & Iron Mountain R.R. Co.

• Citation: 48 Mo. 558
• Parties: WILLIAM WIER, Plaintiff in Error, v. THE ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, Defendant in Error.
• Decision Date: 31 October 1871
• Court: Missouri Supreme Court

48 Mo. 558

WILLIAM WIER, Plaintiff in Error,

v.THE ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Iron Circuit Court.

John L. Thomas, for plaintiff in error, contended that the cases of Iba v. Hann. & St. Jo. R.R. Co, 45 Mo. 469; Meyer v. North Mo. R.R. Co., 35 Mo. 352, and Van Decker v. Rensselaer & Saratoga R.R. Co., 13 Barb. 390, did not adjudicate the case at bar, and that on principle there was more necessity for fencing railroad tracks in towns and cities, and particularly about depots and switches, the neighborhood where the accident occurred.

Dryden & Dryden, for defendant in error.

The cases already decided by this court clearly relieve the defendant from the imputation of implied negligence for not having fenced. (Meyer v. North Mo. R.R. Co., 35 Mo. 352; Iba v. Hann. & St. Jo. R.R. Co., 45 Mo. 469; Indianapolis & Central R.R. Co. v. Kenney, 8 Ind. 402; Lafayette & Indiana R.R. Co. v. Shriver, 6 Ind. 141; Indianapolis & Central R.R. Co. v. Oestel, 20 Ind. 231.)

CURRIER, Judge, delivered the opinion of the court.

This suit was brought to recover the value of a horse killed upon the defendant's railroad within the corporate limits of the town of De Soto, a town which, as the agreed statement shows, was duly laid off into streets and avenues, blocks and lots. It is admitted, moreover, that the ground over which the defendants have a right of way for the purposes of their railroad in the town of De Soto, at the point where the accident complained of occurred, is, and for the past twelve years has been, used by the public as a “public highway.” Were the defendants under legal obligations to fence up this way and exclude the public from its accustomed use of it?

They were not required to do so under the provisions of section 43, article II, chapter 37, Wagner's Statutes; since that section requires railroad companies to fence their tracks only where these tracks “pass through, along or adjoining inclosed or cultivated fields, or uninclosed prairie lands;” and the locality in question is admitted not to come within either of these designations.

Under section 5 of the damage act (Wagn. Stat. 520), however, according to the general phraseology of the section, negligence on the part of a railroad company is imputed, as a matter of law, where an animal is injured or killed by the company's cars, engines, etc., at any point on the road where the track is not fenced, except at the crossings of public highways. The prior decisions of this court nevertheless seem to exclude the idea that the inference of negligence, in the absence of proof, arises where animals are injured upon a railroad track within the limits of incorporated towns and cities,...