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

• Decision Date: 31 October 1883
• Parties: WYMORE v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 247

WYMORE

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

Supreme Court of Missouri.

October Term, 1883.

Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.

AFFIRMED.

G. W. Easley for appellant.

D. C. Allen for respondent.

HENRY, J.

This is a suit commenced before a justice of the peace in Clay county, to recover damages for the value of a cow killed by defendant's engine and cars. Plaintiff had judgment, from which defendant appealed to the circuit court, in which plaintiff again had judgment, and defendant has appealed to this court.

The statement alleges that the cow strayed upon the track of defendant's road, at a point within the corporate limits of the city of Liberty. It does not allege that she was negligently or carelessly killed, but relies upon the fact that the place where the cow was killed was within a part of said city which was not at the time the killing occurred intersected by streets, lanes, avenues or alleys, and that the company had failed to erect fences along the sides of the road through that part of the city.

The testimony tended to--in fact, did clearly--prove that the cow was killed on a tract of land made up of two mill tracts, each inclosing about two acres; that said tracts are within the corporate limits of the city of Liberty, but are not designated on any plat as blocks or lots; nor are they part or parts of any addition to said city, although since 1851 included within its corporate limits; nor have they ever been intersected by streets or alleys in any direction. Defendant's road could be fenced between the west line of the public road leading from Liberty Landing and bounding the mill tract on the east and the eastern extremity of its bridge over the town branch, without interfering with any street, lane, avenue or alley.

It was observed by Bliss, J., who delivered the opinion of the court in Lloyd v. Pacific R. R. Co., 49 Mo. 200, that “this court has uniformly held that railroad companies are under no obligation to fence their track where it crosses the plat of a town or city,” citing Meyer v. Railroad Co., 35 Mo. 353; Iba v. Railroad Co., 45 Mo. 469; Wier v. Railroad Co., 48 Mo. 558. In Ells v. Pacific R. R. Co., 48 Mo. 232, the same learned judge, speaking for the court, observes that “the statute makes no exception in regard to towns, but only an implied one on the crossing of a public highway.” Again: “Ordinarily a railroad track cannot run any considerable distance within a town, without being crossed by some street actually opened, or merely established. In that case the fencing cannot be required, for it would shut up a street actually in use, or one that has been; laid out and dedicated and may soon be opened. But where the corporation lines embrace portions of an adjacent country not actually laid out as a town, or so laid out that no streets cross the railroad, the reason for the exception does not apply, and the obligation to fence is as imperative...